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by the crown, or questioned by its judges, the
Question as to the Practice exercised
by the tre o whole charge comes before the jury on the general issue, who have a jurisdiction co-exten- Contempt, and punishing it by their own Order .
Houses of Purliament of construing Libel in sive with the accusation, the exercise of which, in every instance, the authority of the court can We have stated what in the general opinion neither limit, supersede, controul, or punish. is the true and only justification of the exercise
Whenever this ceases to be the law of Eng- of the right of commitment for a contempt land, the English constitution is at an end, and arising out of libel, namely, that the misdeits period in Ireland is arrived already, if the meanor is likely to have such an instantaneous court of King's-bepch can convert every crime effect as an obstruction, or of such a violent by construction, into a contempt of its autho- character in point of force as to make it danrity, in order to punish by attachment. gerous to wait for the slow remedy of the lar ;
By this proceeding the party offended is the and therefore the necessity of the case warrants judge ; .creates the offence without any .previ- the summary proceeding. But where the orous promulgation ; avoids the doubtful and te- dinary wibunals are in full jurisdiction-and dious ceremony of proof, by forcing the de- where the constructive contempt of libel is fendant to accuse himself; and intlicts an ar
committed out of doors at a distance from the bitrary punishment, which, if not submitted House of Parliament, a mere animadversion or to and reverenced by the nation as law, is to be censure on their proceedings, accompanied by the parent of new contempts, to be punished no outrage, distributed by no mob at the doors like the former.
nor placarded within the precinct-tbe misdeAs I live in England, I leave it to the par- meanor, however palpably criminal, ought to liament and people of Ireland to consider what be left to the Courts of Justice. In the meis their duty, if such authority is assumed and morable Debate, on the motion of Constantine exercised by their judges ; if it ever happen, Phipps, afterwards Lord Mulgrave, in 1771, in this country, I shall give my opinion. for taking away from the king's Attorney Ge
It is sufficient for me to bave given you my neral the dangerous power of tiling criminal injudgment as a lawyer upon both your ques. tormations ex-officio, as well as in the great tions; yet, as topics of policy can never be mis- debate which grew out of it, on the motion of placed when magistrates are to exercise a dis- Mr. Serjeant Glynne, the opinion of all the cretionary authority, I cannot help concluding most considerable men was, that though the with an observation, which both the crown, and right of removing obstruction by commitment its courts would do well to attend to upon every must be maintained for their own security, yet it occasion.
was a right that ought only to be used in extreme The great objects of criminal justice are re- cases ; when exerted in ordinary instances, the formation and example ; but neither of them public mind must revolt at the harsliness of undeare to be produced by punishments which the cessarily depriving the subject of his indubitable laws will not warrant: on the contrary, they right to trial by Jury. This was held by Mr. convert the offender into a suffering patriot'; Dunning, Mr. Weddierburne, sir George Savile, and that crime which would have been abhor- Mr. Burke, &c. &c.; and indeed it has been red for its malignity, and the contagion of the sentiment of every constitutional man. It which would have been extinguished by a legal has been recently recognized in the courts. prosecution, unites an injured nation under the When Mr. Stockdale was sent by the House of banners of the criminal, to protect the great Commons to trial in the court of King's Bench rights of the community, which in his person for a libel, which they called a breach of prihave been endangered.
vilege, the counsel for the Defendant asked These, sir, are my sentiments, and you may why the House had not punished the delinquent make what use of them you please. I am a themselves ? To this the then Attorney General zealous friend to a reform of thc representation replied in these words of the people in the parliaments of both king- My Learned Friend says-Why don't doms, and a sincere admirer of that spirit and “ the House of Commons themselves punish perseverance which in these days, when every " it ?-- Is that an argument to be used in the important consideration is swallowed up in “ mouth of one who recommends clemency ?luxury and corruption, has so eminently dis- “ Does he recommend this iron hand of power tinguished the people of your country. The “ coming down upon a man of this sort; and interests of both nations are in my opinion the “not temperately, wisely, judiciously, bow to same; and I sincerely hope that neither ill-timed “ the common law of this country ; and say severity on the part of government, nor preci- « let him be dealt with according to that compitate measures on the part of the people of “ mon law? There he will have a scrupulously Ireland may disturb that harmony between the “ impartial trial: there he will have every adremaining parts of the empire, which ought to vantage that the meanest subject is entitled be held more sacred, from a reflection on what “ to." Trial of John Stockdale, p. 88. has been lost.
T. ERSKINE. This has ever been recommended by every
considerate man also, because it is well known In 1798, Mr. Perry addressed to the hon. that this boasted privilege can only be exercised C. J. Fox certain Queries; of which the follow-without controul against their own members or ing account is extracted from the Morning against their own constituents. The more danChronicle, 1810.
gerous case of a contempt by libel committed
by a peer they could not punish by summary ject. However, I will endeavour to answer commitment. Nay, as has been proved, they your Querieswould be without remedy-if their order was “1. There can be no right of committing opposed by the spirit of a court of Justice; for but for contempt, but an act which comes proif they were to send their mace for a judge, as perly under the description of a contempt is the liouse of Lords did in the instance of judge not the less a contempt for being also a mis. Berkeley in 1640, would he come when they demeanor. Indeed it is difficult to conceive a called?
contempt which would not be a misdemeanor. In 1798 we accumulated a volume of mate- “2. I do not think the House of Lords in riak on this great constitutional question. any capacity has powers of commitment be
Among others we submitted the following yond the House of Commons; but, I believe, queries on the case to Mr. Fox, whose know- such powers of commitment have been exerlelse of the law and usage of parliament will cised by it, and I fear without the reproof which, be admitted by all ; and when his high notions such exercise ought to have drawn from the on this subject are remembered, his opinion will House of Commons. be read with a lively interest:
" 3. I should think the House of Lords has Query 1. Though the House of Lords, as no more power in its judicial than in its legislawell as every court of justice, have the power tive character, in respect to breaches of priviof protecting their proceedings from unlawful lege and contempts, if in truth it can be proobstruction, can this right extend to the com- perly said to have two distinct characters, which mitment for the misdemeanor of libel ?
I doubt. 4. Has the House of Lords, either in its 66 4. My libel bill has nothing to do with the judicial or legislative capacity, any power of jurisdiction of the Houses of Parliament. Its commitment beyond that of the House of Com- principle, however may be urged as an argumons, the latter never committing for a time ment to induce a court to be cautious of judgCertain, wor imposing a fine?
ing libel without the assistance of a jury, ex3. Has the House of Lords, in fact, any cept in cases of great urgency. Teater power over contempt, or breach of 46 5. I should think the question of a proprivilege in the exercise of its judicial functions, prietor of a ne rspaper being criminally resthun in its legislative capacity ?
ponsible for its contents, a very doubtful one, 4. Does not the principle of your bill, by and indeed I should strongly incline to the newhich it is declared that in matter of libel, the gative; if the point had not, as I conceive, whole case shall be left to the jury, who shall been often determined and acquiesced in. pronounce a verdict of Guilty or Not Guilty “6. I believe the right of the House of theretn, extend to the Houses of Parliament Lords to fine, stands solely upon practice, and I as well as to courts-so as to do away all sum- have little doubt of its being an usurpation ; as may proceeding on libel, under the construc- to its right for committing for a term, I have tion of its being a contempt?
given my opinion in my answer to Query 2. 5. Can the power of summary commitment “7. The proper channel for redress against be legally exercised, or at least
justly and the House of Lords, is a petition to the House agreeably to precedent, against an individual
, of Commons; but that in the present state of upon the mere proof of his being the proprietor things cannot be thought of. Whether or not of a newspaper, but without any proof of his there can be a civil action against the gaoler for knowledge of the matter complained of? false imprisonment, is a question for profes
6. Supposing the right of commitment to sional lawyers; and upon this a good deal of exist
, can the House of Lords commit an in the old dispute on the case of Ashby and White dividual for any cause, as for breach of privi- would come in play ; with this material diffelege, for a term certain, and adjudge him to rence, that the objection, which was urged in pay a fine?
that case to the possibility of the House of ?: What mode of redress would, in your Lords, in case of appeal, becoming judge of opinion, be the constitutional course for me to the privilege of the Commons, would lie here pursue in this case of commitment by the as strongly (though in a different view) to the House of Lords, on the constructive contempt House of Lords becoming by appeal judge of
their own act. To which Mr. Fox sent the following Answer:
“ I have now answered your Queries as well as I can. The conduct of the House of Lords
seems to have been very harsh, especially as " I should be extremely glad to be in any the paragraph in question, I understand (for 1 way serviceable to you upon the present occa
have not seen it) to be of that sort from which sion, but I cannot think my opinion on a case your paper is of all
most free. But of this sort, as of any value in comparison with harsh as it is, I do not know that it is contrary that of professional men ; especially as redress, to precedent, or otherwise illegal, than with re
any, must be had in courts of law; for, I spect to the term and the fine, and I do not presume you cannot think that in the present know that my opinion upon these heads is that state of things there is any
chance, even the of any other person, much less the general one. smallest, of either House of Parliament
listen- Every court appears to me to have usurped ing to any thing that can be offered on the sub-powers in cases of contempt beyond the ne
of a libel?
* Dear Sir,
cessity of the case, and the House of Lords a contempt of the court; the gentleman who more than any otha, possibly, because there is advertised was comunitted, and all Westminster noappeal from it, except to parliament, of which hall were satisfied that this was right.” they make a part. By the way it is observable, PROCEEDINGS IN THE HOUSE OF COMMONS CONthat the House of Commons, which of all courts
CERNING FLOYDE. has been the most moderate in exercise of power of this sort, is the court whose power and right
[From ihe Osford Debates.] has oftenest been called in question. Mr. Er
Monday, April 30, 1621. skme's whole letter seems to relate more to There is delivered into the House, a Paper ordinary courts of justice than to the Houses or Note of the said scandalous Speeches, used of Parliament; but even in the case of such against the Palsgrave, and the lady Elizabeth ; courts, if a man were to write contumaciously in wbich it is set down, that one Edward Floid, of the manner in which a judge gave judg- a gentleman and prisoner in the Fleet, talking ment, I suspect he would certainly be attached with Dr. Pennington concerning the loss of for a contempt; though this case is not men- Prague, did say, in a scornful and malicious tioned by Mr. Erskine, nor does it come, manner, • That Goodinan and Goodwife Palsperhaps, strictly within the line of bis argu-grave were now turned out of doors ;' or to ment. Now if this be so, it is clearly a con- that purpose ; with other disgraceful speeches, tempt of the House of Lords to animadvert as that he, the said Floid, had as much right to contumaciously on the speeches of its mem- the kingdom of Bohemia, as the Palsgrave had. bers, and perhaps more clearly than in the other
This is testified by one Willis to be spoken case, inasmach as to print the speeches at all is by the said Edward Floid, a Papist. a breach of Privilege. In compliance with Sir Edwin Sandys saith, That we will not your wishes, I have given you my opinion at meddle with the words that were spoken of the farge, which, bowever, I consider of very lit- Palsgrave's right to the kingdom of Bohenia; tle val ie, and indeed all the questions of par- but only with the scandalous speeches and disticular and detaile i usurpations and abuses ap- graceful words used by Floid against the perpear io me to become of little moment, at a son of the Palsgrave and his lady. time when the whole constitution is in such a Edward Floid examined, denietb, That he Weplorabie state. The proceedings against you, ever had any speech with any of the parties I suspert io be only a beginning of a persecu- who are alledged as witnesses against him, viz. tion agatust the liberty of the press in general, one Willet, Coale, or Dr. Pennington, conand a part of that system of terror which our cerning the Palsgrave or his lady; and saith, rulers are so fond of.
C. J. Fox." That there was one Williams and a woman For inore respecting this matter, see the present at the time, when Dr. Pennington saith Cases of Barnardiston and Soame, ante, vol. 6, this examinant should speak those disgraceful 1163 ; of Shirley and Fagg, unte, vol. 6, p.
words. 1121, and the other cases there mentioned.
May 1. In the Lords' Journal, under date Mareh 23, Dr. Pennington, a doctor of physic, exap. 1680, it appears that a Committee of Privi- mined saith, That he and Mr. Edward Floid leges reported their opinion that the Privilege having a conference in his chamber, the said of the House extendei to exempt a peer's ser- Floid told this examinant, that he heard that vant being a householder from service of pa- Prague was taken by the emperor, and that rochial ortices, but the House did not agree Goodman Palsgrave had taken his heels, and with the Committee.
This Case may be found to be not immaterial Among the Harleian manuscripts, there is in the consideration of Privilege of Parliament, a collection of the proceedings in this remarkaand of the conusability elsewhere of ques. ble case, by sir Harbottle Grimston. The MS. tions respecting such alleged Privilege. appears to have belonged to Robert Harley, af
Mem. In archbishop Secker's Report, terwards Lord Treasurer and earl of Oxford; (inserted in Cobb. Parl. Hist.) of the debate in who, in the first page, has written his censure the House of Lords, May 25, 1742, upon the of these proceedings, as follows. second reading of the bill for indemnifying per
At the top of the Title : sons who should make discoveries concerning • The following collection is an instance hors the earl of Orford's conduct, it is related that • far' a zeal against Popery and for one branch lord Hardwicke, chancellor, mentioned the fol. • of the royal family, which was supposed to lowing Case, which I do not recollect to have • be neglected by king James, and consequentseen in print:
• ly in opposition to him, will carry people " to Chancery, in the Case of Sacheverel against common justice and humanity. and Pool, a man published an advertisement July 14, 1702.
• R. H.' that he would give 100l. to any man that could
At the bottom : give evidence in relation to such a marriage. • For the honour of Englishmen and indeed The other side moved the court upon this as of human nature, it were to be hoped, these
• debates were not truly taken, there being so As to the commitment of Mr. Perry see many motions contrary to the laws of the Mr. Ila grave's opinion in the second volume land, the laws of Parliament, and public jusof his Juridical Arguments and Collections. * tice. R. HARLEY.' July14, 1702.
was run away, and that Goody Palsgrave was grave to be king of Bohemia. And this exataken prisoner; and, this examinant wishing minant saith, he told the Warden of the Fleet that himself and all other able men of these words, and also of the speeches that bound to go thither, and not to return till they were spoken to Dr. Pennington by Floid : the had redeemed her, the said Floid said, this time when he told the Warden of it was (as he examidant was a fool. He saith, that these remembereth) about the 13th of January last. Words were spoken in the hearing of Mrs. May 1. p. m. Sir Arthur Ingrai saith, Broughton, an attorney's wife of this town. That the committee appointed to search Floid's He saith
, that when these words were spoken, trunks and pockets, found in his pockets beads Dr. Floid and this examinant were good to pray on; and they have found divers popish friends, and that he went at that time to Floid's books and beads in his trunk, and other popish chamber, as one prisoner to visit another : books hidden in his bed :- That Broughton, a That he told the Warden of the Fleet of these prisoner m the Fleet, saith, that Dr. PenningFonks the next day in his dining chamber, in ton did tell him, since Christmas, that Floid the presence of Mr. Pinchback and Mr. Wil hall spoken the said disgraceful words of the lett ; and that six days after the Warden came Palsgrave:- That Mrs. Broughton said, that to this examinant's bed-side, and desired him she heard Floid speak of the Palsgrave, but to tell him all the speeches that were spoken doth not remember what he said, because she by the said Floid concerning the Palsgrave. was then looking out of the window to see He saith, that Floid spake these words with a some play at bowls: That one Hardiman, a joyful countenance.
poor man that was wont to help Floid, make The Warden of the Fleet, examined, saith, his bed and do him such like service, did hear That be first moved Dr. Pennington to know Floid laugh heartily, when one called Fryer the truth of these speeches used by Floid, hav- told him, that Prague was taken by the eming understood of it from a servant of his ; and peror's forces; and that then Floid said to that Dr. Pennington did never acquaint this Fryer, What will the lad do now? now Bess examinant with the said speeches of Floid, till must come home again to her father. And he had first moved him of it: That his servant that the said Hardiman said, he also heard the Lettice Harris, bis niece, was the first that ever said Floid speak those disgraceful words of tolil him of it, and that Dr. Pennington did tell Goodman Palsgrave aņd GoodyPalsgrave,when this examinant, he had written a letter of this the said Fryer was with him.
Ed. Floid, being on his knee at the bar exaDr. Pennington examined, saith, That he mined, and charged with all the proofs beforedid borrow a Chronicle of the Warden of the mentioned, saith, That he knoweth not Har. Fleet, to see whether Voltiger was a Saxon or diman by his name; and saith, that no man a British king; which he desired to know, be- ever used to make his bed in the Fleet, but only cause of a conference held between Floid and
a poor woman. He saith also, that there is him: and that he, this examinant, did then one Dr. Fryer that useth sometimes to come to write to Floid of his error in that discourse, him, but denieth all the words wherewith he is and that, at the time when he borrowed the charged. Chronicle, he acquainted the Warden of the Mr. Hackwell saith, That Lettice Harris Pleet with the speeches made by the said saith, that she did hear Floid speak those
words within this half year, viz. Goodman Sir Edward Cooke saith, That he hath Palsgrave and Goody Palsgrave; but saith, known this Floid long; and that he is a per- that she did never tell the warden of the Fleet Dicious Papist, and a barrister, but a wicked of it. fellow
Sir Robert Phillips saith, there are in this Mr. Thomas Crewe saith, That, if we are care- business three things to be considered ; 1. The ful to punish such as speak scandalous speeches offence; 2. The persons offended; 3. The of foreign princes, then ought we much more punishment to be inflicted on the offender. to be severe to those who speak contemptuous
For the first that Floid bath spoken derogatory words of our own princes.
words of the king's children, in deriding Dr. Willis examined, saith, That Dr. Pen- | them by the name of Goodman and Goody nington told this examinant of those speeches Palsgrave: For the second, that we should of Floid's
, and then told this examinant also, remember and consider in our sentence, that he had told the Warden of the Fleet of that the persons, whom he thus derogated the same words; and that one Francis Allured and vilified, are the hopeful children of our and one Jo. Broughton and his wife can say prince;
a lady hardly to be equalled, not to be much of Floid's rejoicing at the ill fortune of excelled : The third consideration is the punishthe Palsgrave and his lady; and that one ment; wherein he would have us not to forget Handınan will testify, that Floid hath been that the party to be punished is a constant very merry, and drinking of healths, whenever knave (for sò he hath been known to be by any ill news hath come from Prague.
many members of this House this many years) Mr. Coale, bachelor of divinity, examined, and a constant and malicious papist? That, mith, That Flojd told this examinant, that since his offence hath been without limitation,
or any nobleman of England had as his punishment might likewise be without propeach right to be king of Wales, as the Pals- portion : -That he would have him ride, with
his face to a horse's tail, from Westminster to 1 head with a Tor a D, a hole burnt also in his
, should be written, “A Popish Wretch that hath and sir Francis Seymour for the rest of his pu“ maliciously scandalized his majesty's chil- nishment. “ dren;" and that at the Tower he should be Sir George Goring would have his nose, lodged in little ease, with as much pain as he ears, and tongue cut off, to be whipt at as shall be able to endure, without loss or danger many stages as he hath beads, and to ride to every of his life.
stage with his face to the horse's tail, and the Sir Tho. Rowe moveth, that, since he was tail in his hand, and at every stage to swallow committed to the Fleet by the Lords of the a bead; and thus to be whipt to the Tower, and Council, he would have us send to the Lords, there to be hanged. and confer with them touching the punishment Sir Jo. Jephson saith, he would have moved, of him.
that a committee might be appointed to consider Sir Dudley Digs would have us first to ac- of the heaviest punishments that have been quaint the Lords with this business, and make spoken of; but, because he perceiveth the them sharers in the honour of punishing so vile | House is inclined to mercy, he would have him and undutiful a subject.
whipt more than twice as far as those wbo ofSir George Moore saith, that on extraordinary fended against the ambassador, and that can be causes we may enlarge and make precedents'; no less than to the Tower; and would have but desireth, that, by extending our power in him bave a paper written in his hat, declaring this, we take heed that we do not prejudice that his offence. of the Lords. He would have Floid whipped Dir. Jo. Finch saith, that, since we have no from hence to the place whence he carne, and testimony on oath against him, he would not would have him so left to the Lords for farther have us put any corporal punishment on bim, punishment.
but all the ignominious punishment that may be Mr. Ravenscroft would have him fined Sir John Strangewayes saith, that there was 1,000l. and so his corporal punishment to be never a precedent made, but there was a reason spared.
for it, and he hopeth no man doubteth, that is Sir Francis Seymour would have us punish a sufficient reason for us to create a precedent; him as far as the power of our House will ex- and therefore would have him whipt and burnt tend; for he would have us now, if we would through the tongue, and the other punishmenty at any time, stand on the privilege and power
as before. of our House. He would have him go from Sir Jo. Walters saith, that cruelty belongeth hence to the Tower at a cart's tail, with his to our adversaries, and therefore he would not doublet off, his beads about his neck, and have us punish bim with burning in the tongie ; that he should have so many lashes as he hath but would have all his lands and goods given to beads.
the Palsgrave, for to help to raise a force to reMr. Salter would have him ride on a horse cover the Palatinate; and that Floid should be (with his face to the horse's tail) to the Tower, whipt for laughing at the loss of Prague, there and be whipt, and there put in little ease. by to make him shed tears : That he should
Sir Eduard Giles would bave him stand in endure all the ignominy of pillory or other the pillory here at Westninster, two or three wise for his scandalizing of so noble princes. hours, then to be here whipt with as many Mr. Alford would not have him whipt, be lashes as he hath beads, and to be so likewise cause he hath land to pay a fine: That he wil whipt at the court gate, and at the Temple, go as far for the punishment of him as any pre and would have him recommitted to the Fleet, for cedents will warrant, but no further. he would not wish any man to come into a worse agreeth with sir Jo. Walters in all points of hi prison.
censure, saving whipping: Sir Thomas Posthumus Hobby moveth, that Sir Edroin Sundys saith, that the sentend we should recommit him to the Fleet, there to which shall be given here will be censured i be kept in strait prison ; and that we would all Christendom : the cause of Floid's offend peruse the papers before we proceed to censure is the ground of all the differences in Christen him.
dom, which is difference of religion. Sir Francis Darcy would have a hole burnt would not have us interrupt the business of th through his tongue, since that was the member Lords, who are now full of business, by sendin that offended.
of Floid thither; nor in the consideration of h Sir Jeremy Horsey would have his tongue punishment to touch his religion, forth slit or cut out; but, before we do censure him, were to make him a martyr. He agreeth wi he would have us tó peruse the papers, for they sir Jo. Walters in all points of his sentenc may discover more matter against him. saving his whipping ; for that is a punishme
Šir Ed. Cecil saith, that we should make a improper for a gentleman, from which unle difference between the scandalizing of a prince, he were degraded, he would not have him whiy and the scandalizing of a subject. He would Sir Francis Goortuin would bave his whi not have us yet to peruse the papers, nor mix ping counted for a fine. the punishment of his offence against those The Master of the Wards would not have princes with whatsoever fault may be in those meddle with his religion in the punishment papers. He would have him burnt in the fore- him.