The Statesman.
London, England, 1810-05-12 00:00:00

•

711 E

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'Court of Parliament should be thesource of power
he was convinced was the first - principle of the
Constitution ; that power it might perhaps abuse
—but it should not, therefore, fall under the ju.,
I-Wit:titan of an iraferior Court. If this system
Were once established, with equal justice 'night the
Court of Quarter Sessions decide on the conduct
of that of King's Bench. The lion. and Learned
lientleman noticed the case of Sir W. Williams,
which was reported from the Committee appointed
to inquire into the merits of it ; and the opinion of ,
that Committee was, that Sir RobertSawyeconght
to be heard by Counsel, and the AlturneyGineell
waa directed accordingly to• defend hite:' 'There
was another case, .which was an action brbeght by
my Lord Peterburough for Scan: Mrg. which wis
compromised by the payment of damages to the
amount of 1501. These cases, however, were suf.
Went to shew, that in all times the power and au.
thority of the House had been exercised, and ite.
Ter denied, when it became a question in ally of
the Courts of Law. In addition to these, Gets.
tlemen, if they would take the trouble to refer to
Roger North's Life of the Lord Keeper Guildford,
would find a case iu which one Bunton, an allot..
ney, having infringed the privileges of this House,
was ordered into the custody of the Serjeant at
Arms—it so-happened, that before the Serjeant at
Arms could arrest Burden, the House was pro.
roped, and Bunton brought his action of damages
against the Serjeant for assaelte, as often as he at.
tempted to take him, for Burden resisted the ex.
ectition of the warrant.
The ATTORNEY-GENERAL ruse to offer
his full and entire approbation to the explicit state.
meat of the Learned Gentleman, in answer to the
reasons which the Noble Lord had given, why
the House should not be allowed to hold posses.
lion of the jurisdiction which they claimed. The
whole of the arguments of the Noble Lord went
to inculcate an opinion thatif this jurisdiction was
allowed, then it was unconstitur al, because the
subject must suffer, having no Court to which he
could appeal in case of wrong. If that argement
went for any thing, it was equally applicable to a
Court of Law, cause making every allowance
for the infirmities of man's nature, the decision
might be th it the House had the right to imprison,
and that might he supposed an error in judgment.
He would suppose an action was brought in the
Cum • of Common Pleas, and such a decision was
come to, that a writ of error was had hi the King's
Bench, and that the Judges should collude toge.
ther to defeat the law of the land (which he could
nut for a moment believe), and that the dernier re.
sort was the House of Lbrds, who should, on the
appeal, come to a similar decision. Then, he
would ask, what remedy had the party aggrieved
who suffered by the decision ? World it be con.
tended, that because a jurisdiction might, in the
exercise of it, be abused, that, therefore, it could
not exist in law ? Such a proposition was nion.•
reroute and if suffered to obtain, must not only put
au end to all the privilege=, but also to the admi.
nistration u 1 justice in every Court in the king.
do m. Time Learned Gentleman opposite had so'
well elucidated the subject, that it was nut neces•
sary for him to say more on that part of the case. To
allow the interference of any of the lower Courts
would be to part with all jurisdiction—as well
might it be said that the Court of Quarter Session
had the right of ittterfering with the Collet of
King's Bench, or the highest tribunal, the House
Of Lords, as that the Court of King's .Beneh could
cootroul the jurisdiction of this House. The
Douse of Commons were the sole judges of their
own privileges, and of the extent of them. When the
case came before ;,nother Court, that Court would
look to the decision of this House in regard to its
privileges ; by that decision they are bound, said'
*nest act accordingly.
Mr. POSSONBY observed, that the only
question now was, whether the report should lie,
on the table, and he regretred that the House had
cut decided that question before they had entered
lisle what he conceived to be a premature discus.
sjen. The mere laying of the report Oil the table
aagnified no more to the main question, than
he were to lotto of his bat and throw it. on the
toe.. [,4 gouge.] Ht' hoped, therelfere that
l'J muse '400.1 put aim moil to all apprehension on
that score, awl let the Report be laid on the ta.
• ble ;, that being accomplished, he hoped Ministers
woad then muster up resolution enough to tell
the II Illse what course they meant to recommend
tin the occasion.
Tie- question was then pull and the Report was
• ordered to tie on the table,
Mr. DAVIES GIDDY aeain rose to make a
notion founded on the report. lie expressed his
regret that s tine Gentlemen named on the Con.
ivittee had nut done their duty by attending in the
Committee—[fear! hear q—because then their
opinions might have been known.. The Honour-
able Gentleman then recapitulated what he had
stated on moving, thattho e port be laid- on the
table, as to the three modes to be pursued, viz.
Asst, the inhibition to the Courts of Law in pro.
seeding in the action—seemully, as to the GUM.
mittal of every person concerned in suing out the
writ against the Speaker ; or in serving the no.
tics of trial (which would not preclude the par.
ties from proceeding in the action), and thirdly
the pleading in extenu:lion, or in bar, to the ac-
tion. He therefore should move that the Speaker
and Serjeant might, as there was no time to be
loot, be permitted to appear and plead, meaning
to fallow up that motion with another, that'the
.Attorney.Getteral be directed to defend them.—.
The Hon. Gentleman, after nicking some further
observations moved,
" That the Speaker and Serjeant be permitted
to appear and plead to the said actions."
On the tsoestiou hieing put,
Mr. PONSONBY arose. He presumed that
the motion just made met with the concurrence of
his Majesty's. Ministers. Before he proceeded, he
wished to understand whether hu was correct in
that supposition.
The CHANCELLOR of the EKCHEQUER
had no eitneetty in answering in the affirmative.
Mr. PONSONBY said, that he would he the
last man to advise such a contest as that Right
lion. Gentleman had involved the House in ; but

. • •

'wing one engisgedin it, ho would be 'among the tenee thereof to harass any refractory Mem.
first to offer such advice as he thought to be expe- ber and violate the freedom of Parliament. The
client. It was for this reason he thought that the dignity and independence of the two .Houses are
Right Hon. Gentleman ought not to shrink from therefore In a great measure preserved by keep.
the responsibility of givjng hisadvicein a difficulty ing their privileges indefinite."—After having read
'Which he had not shrunk' from the responsibility this passage from Blackstone's Commeutarles, he
of creating. Upon a question which had au hoped to bear no more of Sir Wm: Blackstone.
.toitsiderably engrossed and agitated the public [hear! hear!] Ho next referred to a treatise
mind, he knew Dot whether the opinions be written on the power of Parliament, by Sir Bo-
wes about to offer would be popular or unpopular Bert Atkins, one of the ' Judges of the Court
—whether the magnitude and publicity of the sub. -of Common Pleas, a man whom he described
ject woultt visit upon hint a weight of odiatit or aps. as a sound and constitutional Lawyer. lie
plause, altogether disproportiotied to his humble read a passage from the 69th page of this
and unobtrusive efforts t, du his duty conscientie treatise, which was in substance, that " Hey.
ouster. ; but this he knew) that this was a question ing made it appear that the power of the High
[
Of that unparalleled importance, that if it be a_ Coed of Parliament, though divided sometimes in
' cited in a eertain.way, the liberties of that country the exercise, was the same in effect, however es.
were at an end: Ife thought that House had the right ercised, whether in its - legislative capacity as a
or committing fyr a libel. This was his conscien- branch of the Legislature, or in its judicial cha.
i
' Hots* opinion—an opinion that might be uupopu- racier as the Magna Curia, or in its capacity of a
tar, and which he should regret to find so ; fur, as Council, as the Communia Consilia Regni.—
a Member of Parliament, he must ever respect the Though this doctrine was now thought nut to be
opinions of the iteiaple. Ho would then, however, as maintainable in these enlightened times, yet this
be would the king, serve both, but natter neither. was no new discovery ; the same objections were
[Hear, heist 1.1.1tt proceeding to state his opinion, verted a bemired years ago, but the objection
he should ground what he had to otter upon two was rested upon the abstract principle, iliac.
principles : —the Grit was, that each !unco( Par- pendent of the Constitution, and not upon
!lament was, in its respective capacity, the sole any principle derivable from the Constitution.-
, judge of its net u privileges—the sole judged what The objection rested on a principle that applied
those privileges are—the sole judge of the extent to all Governments. None had, nor ever could
to which those privileges are to be carried—and be constituted so perfect as not to leave a discre.
the sole judge of the manner in which such privi. denary power somewhere. This was the princi-
loges are to be exercised (Ilene, hear!) It fol. pie of the objections of Lord Holt, in that memo.
lowed by consequence, that no other Court in rablu case in which he dissented 'from the eleven
this country had the right to interpose their opi. Judges of that day. His argument was, that the
niun upon what was privilege of Parliament... house of Commons may declare any thing they
the nature, the extent, or the exercise of it. • The please privilege. But this proved nothing more than
other proposition which he would lay down as. a that power might be abused. Was it, therefore, not
principle was, that wheneter the Court of Parlia- to exist at all ? Yes, say the objections, but in
snout no matter ' which . House of. Pariah,' a definite form. But the law of the land said other.
s
ment, had aleclared a matter to be privilege, that wise-the moment privilege of Parliament became
ati other Courts throughout the country were definite it was subjugated. The law of the laud
.
bound to pay respect: and implicit obedience was not to be overturned. If the law-of Parka-
to that *declaration. To shew that he did meat be supposed to be limited by a sound discre.
nut speak from himself merely—that the opinions 'ion,. the Judges arc not to presume otherwise.
he had formed had the 'auction of the wisest and The Judges are in no case to presume that Podia-
the greateia authorities, he should, as he went ment has abused their privileges ; their privileges
along, refer to some books he had brought with exist in their own good pleasure; their own aiscre_
him, antilo preveniall mistakes resulting (ruin a nun is the essence of that privilege—if the one be
lapse of memory, or inaccuracy of transcription removed the other is destroyed. Besides Lord
—as also to cuince that he made no purposely Holt's objection went as much to human nature
garbled extract that bore a different meaning from itself as to the privilege of Parliament: while men
the whole of the context front which it was taken, are men, some part of the must perfect sublunary
he should read the passages from the books. them. Government must be left in the discretion of
selves: the first boek to which he should refer, was their rulers.. But Lord- Holt, in laying down
Sir Matthew Hales Treatise upon the Original his opinion . upon a singular principle, stood
institutiourPower, and Jurisdiction of Parliament. alone in that opinion. Was it nothing that the
Bore the night Honourable Gentletnais re. remaining eleven Judges of the land were of
ferred to the books, and read from it a. passage ass oppoAte opinion ? Aod here it was care-
which was in substance as folloas : " For as every fully to be remembered, that among them there
1
Court of Justice bath laws awl customs for its di- were many as able, sound, constitutional Law-
rection, some to the civil and canon, some the 1 yers as Lord Bolt inin,elf. But it had been ar-
common law, others their own .peculiar laws and f geed, that no unliinited ossdeined 'power ought
customs, so the High Court of Pediment bath to be known by the Cuustitetion. lie did not
also its own peculiar law, called the lex el consue- argue thus for what ought to bet •but what ac.
ludo Parliamenti, stria propriis regalia et cone tnally was. The Constitution • vested discretion,
saetuainibus consistit lea lex, a law not to be and there could be eos'Constitution under Heaven
judged of by other Courts, or questioned therein, .which must not rust discretion' somewhere. if
amid the same is law, became
'and
legem et the King's Bench passes an erroneous judgment
'consuetudinem Parliamenti, and the rather, for, in law, there lay an appeal by 'Writ of Er.
that every Member of Parliament bah a judicial roe to the House of Lords. Their Lord.
place, and caitnot be a witness." Here lie need ships may confirm that wrong judgment instead
scarcely remind the now, that Lord Hale took of rescinding it. Here then was an injury with.
largely from Sir' Edward Coke, whose ()pinking out a remedy—bet who-weer& argue (rein thence
upciti this great question had been adopted impli. against the wisdom of vesting such discretion •in
• citly by Lord Hale ; both these great authorities that House ? If the Judges of the King's Bench
had armed the privilege of Parliament to be not were guilty of wilful corruption, the 'House of
merely ler.Parliansentari, but lex terra, not the Commons would take cognizance of such alleged
law of i•tat House, but the law of the land.— offence, and proceed to presceute such malver.
•thear, hear !)--Thcre was, lin4ver, one oh. sation to condign punishment.. But who shall
jection to which he could not more opportunely call the Pediment to account ? if the people.
advert to than now ; it had been industriously do not approve of the conduct of their Represen.
given out that, though these great lawyers were in' tatives, they may refuse to re.elcct them again to
tltcgcneral sound legalauthorities, yet,that they had act fur thesis in that House when they go back to
tattier too much reverence for Parliament—that them for re-election. The people sorely would
they had too high a notion of the powers and not proceed to mend the Parliament by attempts
authorities of Parliament, and were, in fact, . tou to del,rive them of their privileges. But it was still
much clouded by the abject prejudices of their contended, that the !douse had no power to coin.
days, to be re1i...1 upon implicitly in the enlight- .snit for libel. Where, he asked, were they to look
ened philosophy of the preseat. times. lie nook! for the privilege of Parliament, if not in the customs
not here stop to cianliat prejudice by prejudice', nail practices of Parliament? [Hear!] If then
or examine how far an objection so frivolous tie wars right in such a position, the application
should be alloeed to invalidate an authority' so was nut ditfittult ; for from the earliest period that
weighty ; but he would. take one of those wheat House hail been in the habit of committing for li-
he hail understood to have been chiefly relied' bel, and slanderous( expressions. They would
upon oat of that House, as lain % down opinions End an instance of it so far back as in the 59th
1
hostile to the extent and exercise of emir prive page of the first volume of their Journals, fol.
leges ; he nicest Sir William Blackstone. This . lit evil by o•itnerous others in the subsequent vu.
Judge hail been cited in a way so imperfettly as to! lenses. The Law of Parliament was on this head
the context, and so ignorantly as to the couse. las clear, as undisputed precedents could make it.
pence, that he was considered by some of ! That House could co limit fur libel non: Oa lex
those who had suffered themselves to he so egre- 1 scripta monet..' There was no arguing against it;
giuusly deceived as laying down principles in. ! for it could not be rebutted by an evidence less
compatible with what were called the. Propitiates of 1 than itself.—The usage of Parliament was, as
Parliament. Here the Right Honourable Geode, it were, a (bow 4 evideoce not to be defeated
man referred to Blackstone's Commentaries, and Iby mural testim y to the contrary. 'He could
read from it a passage to the following effect : i nut say, that the House had no such right, be:-
" The maxims upon which they proceed, together 1 cause their records said they had, so that
with the method of eroceedieg, rest entirely in the 1 he Was (to make use.of a law term) Mopped from
breast of the 'Parliament itself; and are not de. denying the faetam, to which, as a member of
tined and ascertained by any particular stated tlitit House, he was a perty. But there had been
laws...-The privileges of Parliament arc likewise a good deal of declamatOry noise about the inva-
very large and indefinite. And therefore when in sion of the littery of the sittleet. There had
31 Hen. VI. the House of Lord* propounded a i lived before them men as much attached to the
question to the Judges concerning them, the Chief right of personal liberty as any the present (jaws,
Justice, Sir John Fortesene, in the name of his could boast. aVheit the Habeas Corpus Act
brethren, declared, 15 that they ought not to make and the Bill of Rights were passed into laws,
answer to that question : for it bath not been used did the men whose public virtue consigned
aforetime that the Justices should in anywise deter- this invaluable legacy to Englishmen fur over
mine the privileges of the Hight Court of-Parlia- ...did they feel it necessary to come forward
meet. For it Is so high and mighty in its nature, that anti claim of that House The redemption of
it may make law ; and that which is law, it may'. the liberty of the subject from the teazing
make nu law ;• and the determination and know. tyranny of their caprice? Did they 'express their
ledge of thakprivilege belimai to the Lords of Par- apprehensions of very 'rodeo power assumed by
liament, and not to the Justices." Privilege of the House of Commons? Did they feel any alarm
Parliament was principally established, in order at our privileges, or think those privileges incom.
to protect its Members not only from being mu. patible with the liberties they were-created* to so.
leetetl by their fellOw-sabjects, Waists more espe- sure ?' [hear, hear !] He had already spoken '
Ally from being oppressed by the power or the to the right-..t0 the necessity, of vesting a discre.
Clown. If therefore all the privileges of Perlis.. denary power somewhere in every Government:.
osent were once to he set down and ascertained). The Constitution vested that discretion iii them ;
and no privilege to he allowed hut what was so but it was objected-thlSConstiaitiion vested it no
',defined and determined, it were easy fur the where else ; and where, he w,
executive potter to ' devise some new case, not Government as this—where
within thn line of privilege, and under pre. be wore properly tote& than

.- .'

7"""11111

presentative' of a freen
tPheeoepilnen?li[inhenunrf,
thil7ol.l].
Were this g fiat men who worked out the :sera.
tairlns offro°muitihibeeTrthielrOue, and in the establish rent
of the Coustitution—were they hostile, either in
principle or education, to the personal liberty of
the subject ? Was the great Lori Somers a friend
to arbitrary power in any shape ? Was the able
'Sir William Maynard an enemy to the Constitu.
tine,? Was Sir Joseph Jekyl a man indifferent to
the rights and privileges of Englishmen ? Did
these men, upon the memorable ilitegtion of the
Kentish Petition—did they for one moment enter.
lain a doubt of the legal amid constitutional right
of that House to commit for libel ? Did any see of
them question the privileges of that H else? Die
they not rather give to them the weight of their
united authorities? hen I find, said Mr. Pons
sonby, the privileges of this house sanctioned by
the ablest and most upright J Alges of the Land—
by the must profound and incorrupt Statesmen—
by the purest Patriots—by tee most constitutional
amid popular Ministers—by men who did nut talk
about liberty, but hazarded their lives to secure
itL-when 1 find the pregress of timeisetirielligtit:d.
ening the work of their united virtue with the
claims of antiquity—a work that it was not fleece.
sary for antiquity io make venerable; wi
all this, I own that were it possible for me to ho
so disposed, that my hand would tremble in the
attempt to tear down that noble fabric their pa.
triotism had reared, and their wisdom had pro.
flounced the fairest and the 14.•mest in the %odd !
[ei general cry of hear, hear !) With respect
to the doctrine of clintempts teat bad Timd-
ly gone abroad, he must Say that he did not
concur in that doctrine. It was well kit eilt
that formerly the two houses of l'a lieneut
sat under the same roof, :mil tranacted host.
mess together. The time of their separation
.is
cot exactly known. The right of the two Houses'
Stitiug thus in the high Court of Parliament,
to commit for contempt, would not be disputed.
• Did then the separation which afterwaiels, fur ob.
views reasons of mutual convenience, took place
between the two Houses, as to the form of their
sitting together—did that separation divest them
not their respective right to assert the authority of
their Court, and protect the proceeitines therein
'from alfobitruction, whether enustructire or other.
'wise ? lie had no doubt that when they sepa.
rated, each retained the same power. The Right
lionourable Gentleman steel proceeld to quote
the authority of Lord Chief Justice \Yllmoc, in
support of the Right of the • Hinise to cum. •
mit generally. Ile stated that Chief Justice Wil.
mot! of the Kiiig's Bench, was a man of admir.
able capacity, deep and extensive learning, rut
I unimpeachable integrity. The passatv to which
he was about to refer was from a intlgnient pre-
pared by Chief Justice Wilmot; but the else to
' which it related net having come on, the judgment
itself had never been delivered. Here the Right
Iltinotirable Gentleman proceeded' to read from
a book which h: held in his band, obsetvations to
'the following effect :—one was, "that its all
Courts whatever, in this country, the power .
of vindicating the rights, privileges; and 'Who.
rity of any Court, • was coeval. nifh the moist.
•etiee of the Court itself." Anotheratated, "that
the power of Parliament *as a necessary inei.
dent: to Parliament; because it was incident to all
Courts of Justice, whether of record or not t sal
another paisage laid it down, that Privilege of Par-
liament was as much lex terra?, and as much with.
in the exception of Magna Charm as any one part
of the known law of the land that did come within
It exceptions.— II ere Mr. Poteonby commented oe
the absurdity of construing Magna Charta strict-
ly in every case. Did punishments affecting per.
sons{ liberty never take place but in consequence
of conviction on Tall by Jury? What man that
• over was in a Court of Law, th it ever turned over
the leaves of a law book for half an hour in his
study, but knew the contrary ? If it were not so
there could be no canon, no ecclesiastical law. Whet
had they to do with the strict construction of Magna
Chute, and yet were they no part of the laws?
Another passage stated, that lie had traced every
vestige of privilege, but could not ascertain its
introduction into the common law. Ile took it
therefore to be as ancient as the common law.
It did not make the common law, but it acted
its alliance with it. Attachments were the
old and legal means of punishing contempt's.--
Contempts ought to be punished forthwith, be•
cause they had the effect of shaking men's al-
legiance to the laws by vilifying the judges,
(that is, the Court) who are the channel through
which the King's justice is to he communicated
to the people., The two moths are attachment
and trial by jury—they were not to be confound.
ed.—Murders. were nut to be pnitislied by 3t.
tachments, nor contempts to be tried by Juries
the Court was to judge of what iuipetied the
course of justice, and it was not to tern aside to
others to remove that obstruction, for during etch
remote application justice was delayed. There!
fore Judges are not to be kept waiting at the door
I of a Grand Jury-room for that Gland Jury to
determine evliether their proceedings hive been
obstructed, of which they vrc the best judges.--
Mr. Ponsunby next proceeded .to read at Sale_
letistli detached passages from the judgment Id
Lord Chief Justice Wilmot, sheaving the right
of Judges to commit for libel • construed as
eontempts, and constructive obstructions to the
I course of justice, and therefore to be punisiteclba
the summary mode of attachment. Fetch was
Ihu
reasoning of Lord Chief Justice Wilteot, whic!i
he believed would be found to 'be a slitisfactoy:
commentary upon the sagacious complaints of
those who ranted so loudly agaccusers, jedainst whet they
'ailed the absurdity of being
'and executioners in their own cause.—[heir -
hear !] —ln thus communicating his semi:note
gess
upon the question before the House, he wished t 0
be considered as not presnmingte give any advice,
Is to the course which then aught to be puteeede
In place of any attempt to direct the condirce al
House, he wished to be considered aedislivcr-
ing his'own humble opinion Whig capacity o
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Intrllllll.oll V LIAOVP lii NI/ ~•6 .... v...• os sa ••• •r•se ••••••••.,-- -
sword ask, ler such a Member of Parliament. And indeed from " •
eouW that discretion that had already passed upon that subject) t
o:p
tid the Cumulus tie- Right Lion. Gcuticaos opposite poss—