By this proceeding the party offended is the judge; creates the offence without any previous promulgation; avoids the doubtful and tedious ceremony of proof, by forcing the defendant to accuse himself; and inflicts an arbitrary punishment, which, if not submitted to and reverenced by the nation as law, is to be the parent of new contempts, to be punished like the former. As I live in England, I leave it to the parliament and people of Ireland to consider what is their duty, if such authority is assumed and exercised by their judges; if it ever happen, in this country, I shall give my opinion. In the me by the crown, or questioned by its judges, the QUESTION as to the Practice exercised by the two whole charge comes before the jury on the geHouses of Parliament of construing Libel into neral issue, who have a jurisdiction co-extensive with the accusation, the exercise of which, Contempt, and punishing it by their own Order. 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-bench 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 law; and therefore the necessity of the case warrants the summary proceeding. But where the ordinary tribunals are in full jurisdiction-and where the constructive contempt of libel is committed out of doors at a distance from the House of Parliament, a mere animadversion or censure on their proceedings, accompanied by no outrage, distributed by no mob at the doors nor placarded within the precinct-the misdemeanor, however palpably criminal, ought to be left to the Courts of Justice. movable Debate, on the motion of Constantine Phipps, afterwards Lord Mulgrave, in 1771, for taking away from the king's Attorney Ge neral the dangerous power of uling criminal informations ex-officio, as well as in the great debate which grew out of it, on the motion of Mr. Serjeant Glynne, the opinion of all the most considerable men was, that though the right of removing obstruction by commitment must be maintained for their own security, yet it was a right that ought only to be used in extreme cases; when exerted in ordinary instances, the public mind must revolt at the harshness of unnecessarily depriving the subject of his indubitable right to trial by Jury. This was held by Mr. Dunning, Mr. Wedderburne, sir George Savile, Mr. Burke, &c. &c.; and indeed it has been the sentiment of every constitutional man. It has been recently recognized in the courts. When Mr. Stockdale was sent by the House of Commons to trial in the court of King's Bench for a libel, which they called a breach of privilege, the counsel for the Defendant asked why the House had not punished the delinquent themselves? To this the then Attorney General replied in these words-- It is sufficient for me to have given you my judgment as a lawyer upon both your questions; yet, as topics of policy can never be misplaced when magistrates are to exercise a disaretionary authority, I cannot help concluding with an observation, which both the crown, and its courts would do well to attend to upon every occasion. The great objects of criminal justice are reformation and example; but neither of them are to be produced by punishments which the laws will not warrant: on the contrary, they convert the offender into a suffering patriot; and that crime which would have been abhorred for its malignity, and the contagion of which would have been extinguished by a legal prosecution, unites an injured nation under the banners of the criminal, to protect the great rights of the community, which in his person have been endangered. These, sir, are my sentiments, and you may make what use of them you please. I am a zealous friend to a reform of the representation 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 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. "not temperately, wisely, judiciously, bow to 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 Chronicle, 1810. against their own constituents. The more dangerous 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 opposed by the spirit of a court of justice; for if they were to send their mace for a judge, as the flouse of Lords did in the instance of judge Berkeley in 1640, would he come when they called? In 1798 we accumulated a volume of materials on this great constitutional question. Among others we submitted the following queries on the case to Mr. Fox, whose knowledge of the law and usage of parliament will be admitted by all; and when his high notions on this subject are remembered, his opinion will be read with a lively interest: Query 1. Though the House of Lords, as well as every court of justice, have the power of protecting their proceedings from unlawful obstruction, can this right extend to the commitment for the misdemeanor of libel? 2. Has the House of Lords, either in its judicial or legislative capacity, any power of commitment beyond that of the House of Commons, the latter never committing for a time certain, nor imposing a fine? 3. Has the House of Lords, in fact, any greater power over contempt, or breach of privilege in the exercise of its judicial functions, than in its legislative capacity? 4. Does not the principle of your bill, by which it is declared that in matter of libel, the whole case shall be left to the jury, who shall pronounce a verdict of Guilty or Not Guilty thereon, extend to the Houses of Parliament as well as to courts-so as to do away all summary proceeding on libel, under the construction of its being a contempt? 5. Can the power of summary commitment be legally exercised, or at least justly and agreeably to precedent, against an individual, upon the mere proof of his being the proprietor of a newspaper, but without any proof of his kuowledge of the matter complained of? 6. Supposing the right of commitment to exist, can the House of Lords commit an individual for any cause, as for breach of privilege, for a term certain, and adjudge him to pay a fine? "Dear Sir, "I should be extremely glad to be in any way serviceable to you upon the present occasion, but I cannot think my opinion on a case of this sort, as of any value in comparison with that of professional men ; especially as redress, if any, must be had in courts of law; for, I presume you cannot think that in the present state of things there is any chance, even the smallest, of either House of Parliament listening to any thing that can be offered on the sub "1. There can be no right of committing but for contempt, but an act which comes properly under the description of a contempt is not the less a contempt for being also a misdemeanor. Indeed it is difficult to conceive a contempt which would not be a misdemeanor. "2. I do not think the House of Lords in any capacity has powers of commitment beyond the House of Commons; but, I believe, such powers of commitment have been exercised by it, and I fear without the reproof which such exercise ought to have drawn from the House of Commons. "3. I should think the House of Lords has no more power in its judicial than in its legislative character, in respect to breaches of privilege and contempts, if in truth it can be properly said to have two distinct characters, which I doubt. "4. My libel bill has nothing to do with the jurisdiction of the Houses of Parliament. Its principle, however may be urged as an argument to induce a court to be cautious of judging libel without the assistance of a jury, except in cases of great urgency. 66 5. I should think the question of a proprietor of a newspaper being criminally responsible for its contents, a very doubtful one, and indeed I should strongly incline to the negative; if the point had not, as I conceive, been often determined and acquiesced in. "6. I believe the right of the House of Lords to fine, stands solely upon practice, and I have little doubt of its being an usurpation; as to its right for committing for a term, I have given my opinion in my answer to Query 2. "7. The proper channel for redress against the House of Lords, is a petition to the House of Commons; but that in the present state of things cannot be thought of. Whether or not there can be a civil action against the gaoler for false imprisonment, is a question for professional lawyers; and upon this a good deal of the old dispute on the case of Ashby and White would come in play; with this material difference, that the objection, which was urged in that case to the possibility of the House of Lords, in case of appeal, becoming judge of the privilege of the Commons, would lie here as strongly (though in a different view) to the House of Lords becoming by appeal judge of their own act. "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 the paragraph in question, I understand (for I have not seen it) to be of that sort from which your paper is of all others the most free. But harsh as it is, I do not know that it is contrary to precedent, or otherwise illegal, than with respect to the term and the fine, and I do not know that my opinion upon these heads is that of any other person, much less the general one. Every court appears to me to have usurped powers in cases of contempt beyond the ne cessity of the case, and the House of Lords more than any other, possibly, because there is noappeal from it, except to parliament, of which they make a part. By the way it is observable, that the House of Commons, which of all courts has been the most moderate in exercise of power of this sort, is the court whose power and right has oftenest been called in question. Mr. Erskine's whole letter seems to relate more to ordinary courts of justice than to the Houses of Parliament; but even in the case of such courts, if a man were to write contumaciously of the manner in which a judge gave judgment, I suspect he would certainly be attached for a contempt; though this case is not mentioned by Mr. Erskine, nor does it come, perhaps, strictly within the line of his argument. Now if this be so, it is clearly a contempt of the House of Lords to animadvert contumaciously on the speeches of its members, and perhaps more clearly than in the other case, inasmuch as to print the speeches at all is a breach of Privilege. In compliance with your wishes, I have given you my opinion at large, which, however, I consider of very little val e, and indeed all the questions of particular and detaile i usurpations and abuses appear to me to become of little moment, at a time when the whole constitution is in such a deplorable state. The proceedings against you, I suspect to be only a beginning, of a persecution against the liberty of the press in general, and a part of that system of terror which our rulers are so fond of. C. J. Fox." For more respecting this matter, see the Cases of Barnardiston and Soamne, ante, vol. 6, 1163; of Shirley and Fagg, ante, vol. 6, p. 1121, and the other cases there mentioned. In the Lords' Journal, under date March 23, p. 1680, it appears that a Committee of Privileges reported their opinion that the Privilege of the House extended to exempt a peer's servant being a householder from service of parochial offices, but the House did not agree with the Committee. This Case may be found to be not immaterial in the consideration of Privilege of Parliament, and of the conusability elsewhere of questions respecting such alleged Privilege. Mem. In archbishop Secker's Report, (inserted in Cobb. Parl. Hist.) of the debate in the House of Lords, May 25, 1742, upon the second reading of the bill for indemnifying persons who should make discoveries concerning the earl of Orford's conduct, it is related that lord Hardwicke, chancellor, mentioned the following Case, which I do not recollect to have seed in print: "In Chancery, in the Case of Sacheverel and Pool, a man published an advertisement that he would give 100l. to any man that could give evidence in relation to such a marriage. The other side moved the court upon this as As to the commitment of Mr. Perry see Mr. Ha grave's opinion in the second volume of his Juridical Arguments and Collections. a contempt of the court; the gentleman who advertised was committed, and all Westminster hall were satisfied that this was right.” PROCEEDINGS IN THE HOUSE OF COMMONS CONCERNING FLOYDE.* [From the Oxford Debates.] Monday, April 30, 1621. There is delivered into the House, a Paper or Note of the said scandalous Speeches, used against the Palsgrave, and the lady Elizabeth; in which it is set down, that one Edward Floid, a gentleman and prisoner in the Fleet, talking with Dr. Pennington concerning the loss of Prague, did say, in a scornful and malicious manner, That Goodman and Goodwife Palsgrave were now turned out of doors;' or to that purpose; with other disgraceful speeches, as that he, the said Floid, had as much right to the kingdom of Bohemia, as the Palsgrave had. This is testified by one Willis to be spoken by the said Edward Floid, a Papist. Sir Edwin Sandys saith, That we will not meddle with the words that were spoken of the Palsgrave's right to the kingdom of Bohemia ; but only with the scandalous speeches and disgraceful words used by Floid against the person of the Palsgrave and his lady. Edward Floid examined, denieth, That he ever had any speech with any of the parties who are alledged as witnesses against him, viz. one Willet, Coale, or Dr. Pennington, concerning the Palsgrave or his lady; and saith, That there was one Williams and a woman present at the time, when Dr. Pennington saith this examinant should speak those disgraceful words. May 1. Dr. Pennington, a doctor of physic, exa mined saith, That he and Mr. Edward Floid having a conference in his chamber, the said Floid told this examinant, that he heard that Prague was taken by the emperor, and that Goodman Palsgrave had taken his heels, and Among the Harleian manuscripts, there is a collection of the proceedings in this remarkable case, by sir Harbottle Grimston. The MS. appears to have belonged to Robert Harley, afterwards Lord Treasurer and earl of Oxford; who, in the first page, has written his censure of these proceedings, as follows. At the top of the Title: The following collection is an instance how 'far a zeal against Popery and for one branch of the royal family, which was supposed to 'be neglected by king James, and consequently in opposition to him, will carry people against common justice and humanity. July 14, 1702. R. H.' At the bottom : For the honour of Englishmen and indeed of human nature, it were to be hoped, these 'debates were not truly taken, there being so 6 many motions contrary to the laws of the land, the laws of Parliament, and public jus'tice. R. HARLEY.' July14, 1702. was run away, and that Goody Palsgrave was taken prisoner; and, this examinant wishing that himself and all other able men were bound to go thither, and not to return till they had redeemed her, the said Floid said, this examinant was a fool. He saith, that these words were spoken in the hearing of Mrs. Broughton, an attorney's wife of this town. He saith, that when these words were spoken, Mr. Floid and this examinant were good friends, and that he went at that time to Floid's chamber, as one prisoner to visit another: That he told the Warden of the Fleet of these words the next day in his dining chamber, in the presence of Mr. Pinchback and Mr. Willett; and that six days after the Warden came to this examinant's bed-side, and desired him to tell him all the speeches that were spoken by the said Floid concerning the Palsgrave. He saith, that Floid spake these words with a joyful countenance. The Warden of the Ficet, examined, saith, That he first moved Dr. Pennington to know the truth of these speeches used by Floid, having understood of it from a servant of his; and that Dr. Pennington did never acquaint this examinant with the said speeches of Floid, till he had first moved him of it: That his servant Lettice Harris, his niece, was the first that ever told him of it, and that Dr. Pennington did tell this examinant, he had written a letter of this business. Dr. Pennington examined, saith, That he did borrow a Chronicle of the Warden of the Fleet, to see whether Voltiger was a Saxon or a British king; which he desired to know, because of a conference held between Floid and him: and that he, this examinant, did then write to Floid of his error in that discourse, and that, at the time when he borrowed the Chronicle, he acquainted the Warden of the Fleet with the speeches made by the said Floid. Sir Edward Cooke saith, That he hath known this Floid long; and that he is a perBicious Papist, and a barrister, but a wicked fellow. Mr.Thomas Crewe saith, That, if we are careful to punish such as speak scandalous speeches of foreign princes, then ought we much more to be severe to those who speak contemptuous words of our own princes. . Dr. Willis examined, saith, That Dr. Pennington told this examinant of those speeches of Floid's, and then told this examinant also, that he had told the Warden of the Fleet of the same words; and that one Francis Allured and one Jo. Broughton and his wife can say much of Floid's rejoicing at the ill fortune of the Palsgrave and his lady; and that one Handman will testify, that Floid hath been very merry, and drinking of healths, whenever any ill news hath come from Prague. Mr. Coale, bachelor of divinity, examined, saith, That Floid told this examinant, that himself, or any nobleman of England had as much right to be king of Wales, as the Pals grave to be king of Bohemia. And this examinant saith, he told the Warden of the Fleet of these words, and' also of the speeches that were spoken to Dr. Pennington by Floid: the time when he told the Warden of it was (as he remembereth) about the 13th of January last. May 1. p. m. Sir Arthur Ingram saith, That the committee appointed to search Floid's trunks and pockets, found in his pockets beads to pray on; and they have found divers popish books and beads in his trunk, and other popish books hidden in his bed :-That Broughton, a prisoner in the Fleet, saith, that Dr. Pennington did tell him, since Christmas, that Floid had spoken the said disgraceful words of the Palsgrave:-That Mrs. Broughton said, that she heard Floid speak of the Palsgrave, but doth not remember what he said, because she was then looking out of the window to see some play at bowls: That one Hardiman, a poor man that was wont to help Floid, make his bed and do him such like service, did hear Floid laugh heartily, when one called Fryer told him, that Prague was taken by the emperor's forces; and that then Floid said to Fryer, What will the lad do now? now Bess must come home again to her father. And that the said Hardiman said, he also heard the said Floid speak those disgraceful words of Goodman Palsgrave and Goody Palsgrave, when the said Fryer was with him. Ed. Floid, being on his knee at the bar examined, and charged with all the proofs beforementioned, saith, That he knoweth not Hardiman by his name; and saith, that no man ever used to make his bed in the Fleet, but only a poor woman. He saith also, that there is one Dr. Fryer that useth sometimes to come to him, but denieth all the words wherewith he is charged. Mr. Hackwell saith, That Lettice Harris saith, that she did hear Floid speak those words within this half year, viz. Goodman Palsgrave and Goody Palsgrave; but saith, that she did never tell the warden of the Fleet of it. Sir Robert Phillips saith, there are in this business three things to be considered; 1. The offence; 2. The persons offended; 3. The punishment to be inflicted on the offender. For the first that Floid hath spoken derogatory words of the king's children, in deriding them by the name of Goodman and Goody Palsgrave: For the second, that we should remember and consider in our sentence, that the persons, whom he thus derogated and vilified, are the hopeful children of our prince; a lady hardly to be equalled, not to be excelled: The third consideration is the punishment; wherein he would have us not to forget that the party to be punished is a constant knave (for so he hath been known to be by many members of this House this many years) and a constant and malicious papist: That, since his offence hath been without limitation, his punishment might likewise be without proportion:-That he would have him ride, with his face to a horse's tail, from Westminster to | the Tower, with a paper in his hat, wherein should be written, "A Popish Wretch that hath "maliciously scandalized his majesty's chil"dren;" and that at the Tower he should be lodged in little ease, with as much pain as he shall be able to endure, without loss or danger of his life. Sir Tho. Rowe moveth, that, since he was committed to the Fleet by the Lords of the Council, he would have us send to the Lords, and confer with them touching the punishment of him. Sir Dudley Digs would have us first to acquaint the Lords with this business, and make them sharers in the honour of punishing so vile and undutiful a subject. Sir George Moore saith, that on extraordinary causes we may enlarge and make precedents; but desireth, that, by extending our power in this, we take heed that we do not prejudice that of the Lords. He would have Floid whipped from hence to the place whence he came, and would have him so left to the Lords for farther punishment. Mr. Ravenscroft would have him fined 1,000l. and so his corporal punishment to be spared. Sir Francis Seymour would have us punish him as far as the power of our House will extend; for he would have us now, if we would at any time, stand on the privilege and power of our House. He would have him go from hence to the Tower at a cart's tail, with his doublet off, his beads about his neck, and that he should have so many lashes as he hath beads. Mr. Salter would have him ride on a horse (with his face to the horse's tail) to the Tower, and be whipt, and there put in little ease. Sir Edward Giles would have him stand in the pillory here at Westminster, two or three hours, then to be here whipt with as many lashes as he hath beads, and to be so likewise whipt at the court gate, and at the Temple, and would have him recommitted to the Fleet, for he would not wish any man to come into a worse prison. Sir Thomas Posthumus Hobby moveth, that we should recommit him to the Fleet, there to be kept in strait prison; and that we would peruse the papers before we proceed to censure him. Sir Francis Darcy would have a hole burnt through his tongue, since that was the member that offended. Sir Jeremy Horsey would have his tongue slit or cut out; but, before we do censure him, he would have us to peruse the papers, for they may discover more matter against him. Sir Ed. Cecil saith, that we should make a difference between the scandalizing of a prince, and the scandalizing of a subject. He would not have us yet to peruse the papers, nor mix the punishment of his offence against those princes with whatsoever fault may be in those papers. He would have him burnt in the fore head with a T or a D, a hole burnt also in his tongue, and agreeth with sir Robert Phillips and sir Francis Seymour for the rest of his punishment. Sir George Goring would have his nose, ears, and tongue cut off, to be whipt at as many stages as he hath beads, and to ride to every stage with his face to the horse's tail, and the tail in his hand, and at every stage to swallow a bead; and thus to be whipt to the Tower, and there to be hanged. Sir Jo. Jephson saith, he would have moved, that a committee might be appointed to consider of the heaviest punishments that have been spoken of; but, because he perceiveth the House is inclined to mercy, he would have him whipt more than twice as far as those who of fended against the ambassador, and that can be no less than to the Tower; and would have him have a paper written in his hat, declaring his offence. Mr. Jo. Finch saith, that, since we have no testimony on oath against him, he would not have us put any corporal punishment on him, but all the ignominious punishment that may be Sir John Strangewayes saith, that there was never a precedent made, but there was a reason for it, and he hopeth no man doubteth, that is a sufficient reason for us to create a precedent; and therefore would have him whipt and burut through the tongue, and the other punishment as before. Sir Jo. Walters saith, that cruelty belongeth to our adversaries, and therefore he would not have us punish him with burning in the tongue; but would have all his lands and goods given to the Palsgrave, for to help to raise a force to recover the Palatinate; and that Floid should be whipt for laughing at the loss of Prague, thereby to make him shed tears: That he shou endure all the ignominy of pillory or otherwise for his scandalizing of so noble princes. Mr. Alford would not have him whipt, be cause he hath land to pay a fine: That he wil go as far for the punishment of him as any precedents will warrant, but no further. H agreeth with sir Jo. Walters in all points of hi censure, saving whipping. Sir Edwin Sundys saith, that the sentenc which shall be given here will be censured in all Christendom: the cause of Floid's offence is the ground of all the differences in Christen dom, which is difference of religion. would not have us interrupt the business of the Lords, who are now full of business, by sending of Floid thither; nor in the consideration of h punishment to touch his religion, for that were to make him a martyr. He agreeth w sir Jo. Walters in all points of his sentence saving his whipping; for that is a punishme improper for a gentleman, from which unles he were degraded, he would not have him whip Sir Francis Goodwin would have his whi ping counted for a fine. The Master of the Wards would not have u meddle with his religion in the punishment him. |