Impeachment against Warren Hastings. By Address, 15th February-xliii Jour. 232. 1789.-Printer and Publisher" The World" -Containing matter of scandalous and libellous nature, reflecting on the Proceedings of the House-By Address, 16th June xliv Jour. 463. HIS 1795.-JOHN REEVES.-As author of a pamphlet, entitled, "Thoughts on the Er glish Government;" which was adjudged by the House to be a malicious, scandalous, and seditious libel, containing matter tending to create jealousies and divisions among Majesty's loyal subjects; to alienate their affections from our present happy form of Government in King, Lords, and Commons, and to subvert the true principles of our free . Constitution; and to be a high breach of the Privileges of the House.-By Address, 15th December-li Jour. 119, 235. APPENDIX (C.) CLAIM and RECOGNITION of the PRIVILEGES of PARLIAMENT, and the Power of COMMIT MENT. 11 Rich. 2. Rot. Parl. vol. iii. 244. En ycest parlement, toutz les Seign'rs si bien espiritels come temporels alors presentz clamerent come lour libertee & franchise, q'les grosses matires moevez en cest parlement, & a movers en autres parlementz en temps a venir, tochantz Pieres de la Terre, serroient demesnez, ajuggez, & discus par le cours de lement, & nemye par la Loy Civile, ne par la commune Ley de la Terre, usez autres plus bas Courtes du Roialme: quell claym, liberte, & franchise le Roy lour benignement alloua & ottroia en plein parle ment. par en 32 Hen. 6. Rot. Parl. vol. v. p. 239.Thorp's Case. The seid Lordes Spirituelx and Temporelx not entendying to empeche or hurt the Libertees and privilegges of theym that were come'n for the commune of this lande to this present parlement, but egally after the cours of lawe to mynystre justice, and to have knowlegge what the lawe will wey in that behalve, opened and declared to the justices the premissez, and axed of them whether the seid Thomas ought to be delivered from prison, by force and vertue of the privelegge of parlement or noo. To the which question the chefe justcez, in the name of all the justicez, after sadde communication and mature deliberation hadde among theem, aunswered and said, that they ought not to aunswere to that question, for it hath not be used afore tyme that the justicez should in eny wyse determine the privilegge of this high court of parlement. Hen. 8. The original Roll in the parliament office.-Stroude's Case. This is the act conc'nyng Richard Stroude for matt's resoned in the p'liament.--The ac begins by reciting the petition of Rd. Stroude and after that recital proceeds thus: HENRY R. Soit baill aux Senio's. That al suts, accusementis, condempnacons And on that be it inacted by the seide autorite, ments, correccons, grev'ncez, charges, & imexecucions, fynys, am'ciamentis, punyshepositions putt or hadde or her aft' to be put or hadde unto or apon the seide Richard, and to every other of the p'son or p'sons afore specyfyed that nowe be of this p'sent pliament any bylle speyking, reasonying or declarying or that of any p'liament her after shall be for off any mat' or maters conc'nying the p'liament to be comenced and treated off, be utt'ly voyde & of none effecte, and on that be hyt inacted by the seid autorite, That if the seid Richard Strode or any of all the seide other p'son or persons her after be vexyd, trobeled or other wyse charged for any causes as is aforesaide, that then he or they & every of them so vexed or troubled off and for the same, have acc'on upon the case agaynste ev'ry such p'son or p'sons so vexying or trobelying any cot'rie to this ordin'ns & p'vision, in the whych acc'on the p'tie greyvd shall be recov' treby'll damages & costis & that no p'teccon, essouie nor wager of lawe yn the seide acc'on in anywise be admytted nor receyvid.—A Ce'st Bill Ley Seinos ss Assent. 1606.-Com. Journ. vol. i. p. 349. The Commons tell the Lords "that they doubt not, but the Commons House is a Court, and a Court of Record." 1620.-Com. Journ. vol. i. p. 545. In a Report of Precedents by sir Edward Coke, it is agreed, "The House of Commons, alone, hath a power of punishment, and that judicial."-Hall's Case 23 Eliz., and Long's Case 5 Eliz. cited. 1675, June 4th.-Com. Journ. vol. ix. p. 354. In the matter of the appellant jurisdiction of the House of Lords, the Commons assert their right" to punish by imprisonment a Commoner that is guilty of violating their privileges, that being according to the known laws and custom of Parliament and the right of their privileges declared by the king's royal predecessors in former Parliaments and by himself in this;" and "that neither the Great Charter, the Petition of Right, nor any other laws, do take away the law and custom of Parliament, or of either House of Parliament." 1701.-Vol. xiii. p. 767.-Kentish Petition. Resolved, That it is the opinion of this committee, 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. Resolved, That it is the opinion of this committee, That to print and publish any books or libels reflecting upon the proceedings of the House of Commons, or any member thereof, "barons of the Exchequer, are assistants to the for or relating to his service therein, is a high" Lords to inform them of the common law, violation of the rights and privileges of the" and thereunto are called severally by writ: House of Commons. Ashby and White. Conferences between the two Houses. The Commons at the second conference with the Lords re-assert their Resolution of 1701: "For it is the ancient and undoubted right of "the House of Commons to commit for breach " of privilege; and the instances of their commit"ing persons (not members of the House) for "breach of privilege, and that to any her "majesty's prisons, are ancient, so many, and so well known to your lordships, that the *Commons think it needless to produce them." -Lords Journ. vol. xvii. p. 709. Lords Journ. vol. xvii. p. 714. The Lords in answer say,--" The Lords "never disputed the Commons power of com"mitting for breach of privilege, as well per"sons who are not of the House of Commons "as those who are," &c. APPENDIX (D.) RECOGNITION of the Law and Privilege of Coke, 4 Inst. fo. 15. | "neither doth it belong to them (as hath been Case. Lord Chief Justice North said," I can see no other way to avoid consequences derogatory to the honour of the parliament, but to "reject the action; and all others that shall "relate either to the proceedings or privilege "of parliament, as our predecessors have "done." "For if we should admit general remedies in "matters relating to the parliament, we must "set bounds how far they shall go, which is a "dangerous province; for if we err, privilege "of parliament will be invaded, which we ought "not in any way to endamage." 1675.-State Trials,-Earl of Shaftesbury's Case.* In the case of the earl of Shaftesbury, who was committed by the House of Lords, "for high contempts committed against the "House," on being brought up to the King'sbench on the return of an Habeas Corpus, the court unanimously determined against entertaining the case; when Rainsford, ChiefJustice, said, "This court has no jurisdiction "of the cause, and therefore the form of the "return is not considerable. We ought not to extend our jurisdiction beyond its limits, and "the actions of our ancestors will not warrant "such an attempt. Lord Coke observes, upon the claim of the Lords, in 11 of Rich. 2. sanctioned by the king (as stated in the first paragraph of Appendix C.) under the head of Lex et Consuetudo Parliamenti;' as followeth-“ And as every "court of justice hath laws and customs for its" “direction, some by the common law, some by "the civil law and common law, some by pe"culiar laws and customs, &c, so the high "The consequence would be very mischiev "court of Parliament-suis proprijs legibus et "ous, if this court should deliver a member of "consuetudinibus subsistit-It is lex et consue"the House of Peers and Commons who are "tudo Parliamenti, that all weighty matters "committed, for thereby the business of par "in any Parliament, moved concerning the "liament may be retarded; for it may be the "Peers of the realm, or Commons in Par- "commitment was for evil behaviour, or inde "liament assembled, ought to be determined," cent reflections on other members, to the dis"adjudged, and discussed by the course of "turbance of the affairs of parliament. "Parliament, and not by civil law, nor yet by "the common laws of this realm used in infe"rior courts; which was so declared to be"secundum legem et consuetudinem Parlia❝menti-concerning the Peers of this realm," be delivered out of execution; for a contempt "by the King, and all the Lords spiritual and temporal: And the like, pari ratione, is for" execution. "the Commons for any thing moved or done "in the House of Commons." Coke, 4 Inst. fo. 50. And on another occasion, in treating of the laws, customs, liberties and privileges of the court of Parliament, which he saith, "hath "been much desired, and are the very heart"strings of the commonwealth :" Lord Coke ays," All the justices of England and "The commitment in this case is not for safe "custody; but he is in execution of the judg"ment given by the Lords for contempt; and "therefore, if he should be bailed, he would "in fucie curia there is no other judgment or "This court has no jurisdiction, and there"fore he ought to be remanded. I deliver no "opinion whether it would be otherwise in case "of a prerogative." 1751, Feb. 7th.-1 Wilson, p. 200.-Murray's Case. When he was brought up to the King's* See vol. 6, p. 1270 of this Collection. bench by a Habeas Corpus, and the court | unanimously refused to discharge him, Mr. Justice Wright said, "It appears upon the "return of this Habeas Corpus, that Mr. "Murray is committed to Newgate by the "House of Commons, for an high and dan"gerous contempt of the privileges of that House; and it is now insisted on at the bar, "that this is a bailable case, within the mean❝ing of the Habeas Corpus act. "To this I answer, that it has been deter"mined by all the judges to the contrary; that "it could never be the intent of that statute to "give a judge at his chamber, or this court, 66 power to judge of the privileges of the House "of Commons. "The House of Commons is undoubtedly an "high court; and it is agreed on all hands "that they have power to judge of their own "privileges; it need not appear to us what the "contempt was for; if it did appear, we could "not judge thereof. "Lord Shaftesbury was committed for a " contempt of the House; and being brought "here by an Habeas Corpus, the court re"manded him; and no case has been cited "wherever this court interposed. "The House of Commons is superior to this "court in this particular; this court cannot "admit to bail à person committed for a con"tempt in any other court in Westminster"hall." Dennison, Justice.-"This court has no "jurisdiction in the present case. We granted "the Habeas Corpus, not knowing what the "commitment was; but now it appears to be "for a contempt of the privileges of the House "of Commons: what those privileges (of ei"ther House) are, we do not know; nor need "they tell us what the contempt was, because "we cannot judge of it; for I must call this "court inferior to the House of Commons with respect to judging of their privileges, and "contempts against them. I give my judgment "so suddenly, because I think it a clear case, "and requires no time for consideration." Lord Mayor, who was committed to the Tower by order of this House, under the Speaker's Warrant, on 25th March 1771, was brought up by Habeas Corpus before the Court of Common Pleas in Easter Term. The question was fully argued, and, by the unanimous judgment of the Court, he was remanded. The Lord Chief Justice de Grey, in giving the opinion of the Court, stated, "That this "power (viz. of commitment) must be inherent "in the House of Commons, from the very "nature of its institution; and therefore is part "of the law of the land. They certainly al"ways could commit in many cases; in mat"ter of elections, they can commit sheriffs, mayors, officers, witnesses, &c. and it is now "agreed, that they can commit generally for "all contempts. All contempts are either pu"nishable in the Court contemned, or in some "higher court. Now the parliament has no "superior court; therefore the contempt "against either House, can only be punished "by themselves." The Stat. of James 1. cap. 13, sufficiently "proves that they have power to punish it, in "these words: Provided always, that this "Act or any thing therein contained shall not "extend to the diminishing of any punishment "to be hereafter by censure in parliament in"flicted upon any person which hereafter shall "make or procure to be made any such arrest "as aforesaid;' so that it is most clear that the legislature have recognized this power of the "House of Commons. In the case of the “Aylesbury men, the counsel admitted, Lord "Chief Justice Holt owned, and the House of "Lords acknowledged, that the House of "Commons had power to commit for con"tempt or breach of privilege. Indeed, it "seems they must have power to commit for any crime. When the House of Commons adjudge any thing to be a contempt or a breach of privilege, their adjudication is a "conviction, and their commitment in consequence an execution;† and no Court can "discharge or bail a person that is in execu"tion by the judgment of any other Court." 6. And he concluded his judgment in these words: Foster, Justice." The law of Parliament is part of the law of the land; and there "would be an end of all law, if the House of "Commons could not commit for a contempt. "All courts of record (even the lowest) may "commit for a contempt; and lord Holt," "though he differed with the other judges, yet "agreed the House might commit for a con"tempt in the face of the House. As for the "prisoner's illness, we can take no notice of it, "having no power at all in this case." The prisoner was remanded. 1771.-3 Wils. 188.-Crosby's Case.* In the year 1771, Brass Crosby, esq. the * See this Case hereafter in this Collection. It seems rather surprising that notice of the earl of Devonshire's Case (in this Collection, A. D. 1687) was not taken either in Wilkes's Case, or Crosby's Case. "I am perfectly satisfied that if lord Holt himself were to have determined it, the Lord "Mayor would have been remanded. In the "case of Mr. Murray, the judges could not "hesitate concerning the contempt by a man "who refused to receive his sentence in a pro"per posture; all the judges agreed, that he "must be remanded, because he was com"mitted by a Court having competent juris"diction. Courts of justice have no cogni *The Commitment in Rudyard's Case, 2 Vent. 22, was a Commitment in execution, and therefore it was necessary in that case to state the evidence, per lord Camden in Wilkes's Habeas Corpus Case, A. D. 1769, in this Collection. 66 "gance of the acts of the Houses of Parlia-" by the judgment of his own house. All "ment, because they belong ad aliud examen. courts, by which I mean to include the two "I have the most perfect satisfaction in my "Houses of parliament and the courts of West"own mind in that determination. Sir Mar-" minster-Hall, can have no control in matters tin Wright, who felt a generous and distin- "of contempt.* The sole adjudication of conguished warmth for the liberty of the sub- "tempts, and the punishment thereof, in any "ject; Mr. Justice Denison, who was so free manner, belongs exclusively, and without from connections and ambition of every kind;" interfering, to each respective court. In"and Mr. Justice Foster, who may be truly "finite confusion and disorder would fellow, if "called the Magna Charta of liberty, of per- "courts could by writ of Habeas Corpus exa"sons as well as fortune; all these revered "mine and determine the contempts of others.† "judges concurred in this point. I am there"fore clearly and with full satisfaction of opi"nion, that the Lord Mayor must be re"manded." • Here is a laxity of expression which might not have been expected from the learned author of the Commentaries.' The meaning seems to be, that the two Houses of Parliament and the courts of Westminster-hall, are not subject to control in matters of contempt, but that other courts are subject to control in such matters. See Clarke's case, Tremaine's Pleas of the Crown, 442. 2 Levinz. 200. 1 Vent. 302. 327. 3 Keb. 764. 799. 811. Dr. Bentley's case 8 Mod. 148. Fortescue 202. 2 Lord Raym. 1331. Strange 557. 2 Kyd on Corporations 79. In Murray's case Mr. Justice Foster says, that, "all courts of Record, even the lowest," [as the Cont of Piepoudre we may suppose] "have power to imprison for contempts. And as to contempts in facie curia,' which obstruct the proceedings of the court, it seems that they must of necessity have power to remove the obstruction; to abate the nuisance, and so is Moor 247. Si "A man Gould, Just." I entirely concur in opinion "with my Lord Chief Justice, that this Court "hath no cognizance of contempt or breach of "privilege of the House of Commons; they "are the only judges of their own privileges; "and that they may be properly called judges, appears in 4 Inst. 47, where my lord Coke "says, an alien cannot be elected of the par“lament, because such a person can hold no place of judicature. Much stress has been "laid upon an objection, that the Warrant of "the Speaker is not conformable to the order "of the House; and yet no such thing appears upon the return, as has been pretended. "The Order says, that the Lord Mayor shall "be taken into the custody of the serjeant or "his deputy; it does not say, by the serjeant "or his deputy. This Court cannot know the "nature and power of the proceedings of the un dit al Judge, Magistrate, ou auter officer "House of Commons: it is founded on a dif- paroles que luy disable defaire son office ou "ferent law; the lex et consuetudo parlia-fait auter contempt, il peut luy imprison." So ""menti,' is known to parliament men only. too Dean's case, Croke, Eliz. 689. "Trewynniard's Case, Dier, 59, 60. When may be imprisoned for a contempt done in "matters of privilege come incidentally before court but not for a contempt out of court." "the Court, it is obliged to determine them, to So, too, is Sparkes, and others, r Martin, 1 "prevent a failure of justice. It is true this Vent. 1. "The Court of Admiralty may "court did, in the instance alluded to by the punish one that resists the process of their "counsel at the bar, [Wilkes's Case, 2 Wils. court, and may fine and imprison for a con"151.] determine upon the privilege of parlia-tempt to their court acted in the face of it." "ment in the case of a Libel; but then that "privilege was promulged and known; it "existed in records and law books, and was al"lowed by parliament itself. But even in that "case, we now know that we were mistaken; " for the House of Commons have since deter"mined, that privilege does not extend to mat"ters of Libel. The cases produced respect"ing the High Commission Court, &c. are "not to the present purpose, because those "courts had not a legal authority. The reso"lation of the House of Commons is an adju“dication, and every court must judge of its "own contempts." So, too. sir George Newman says, (Proceedings and Debates of the House of Commons in 1621, p. 109.) "The Judges have oft-times cause to commit for contempt in the Court." If there be any principles of law whereby the sufficiency of a commitment for contempt may be judged of in the case of one court, it is not very apparent why the same principles should not be applied to the judging of the sufficiency of commitments for contempts by any other court. That courts of Westminster-hall will take conusance of each others commitments for contempts, see the argu ment of Chief Justice Vaughan in Bushell's case in this Collection, vol. 6, p. 999, and the cases of Astwick, Apsley, and Milton, cited in that Case, pp. 1004, 1022. Blackstone, Justice." I concur in opinion, "that we cannot discharge the Lord Mayor. "The present case is of great importance, be"cause the liberty of the subject is materially + Lord Mansfield, in the case of Hassells "concerned. The House of Commons is a and another against Simpson (93 Dougl. Rep. "supreme court, and they are judges of their in note 2d edit.), speaking of Mr. Justice Black"own privileges and contempts, more espe- stone, warned his hearers against implicit re"cially with respect to their own members.liance on great names. It would have been "Here is a member committed in execution more satisfactory if Mr. Justice Blackstone D VOL. VIII. "nish. No other court shall scan the judg"ment of a superior court, or the principal "seat of justice. As I said before, it would The right to determine in such prosecutions any other matters, than the mere fact of publication, and the application of the innuendoes. declaratory statute 32 Geo. 3, c. 60, has fully established the right of juries in such cases to give a general verdict of Guilty or Not Guilty upon the whole matter put to issue on the indictment or information.' This statute origi "This power to commit results from the first "principles of justice; for if they have power to decide, they ought to have power to puhad specified some particulars of the infinite confusion and disorder' which, he lays it down would follow, if courts could by writ of Habeas Corpus examine and determine the 'contempts of others; and had also given some proof that this infinite confusion and disorder must follow, together with some account of the way in which it would follow. For there appears not to be any absurdity in sup-nated in the House of Commons, where the posing that the examinability of commitments motion for the bill was made by Mr. Fox and for contempts, might tend to render those who seconded by Mr. Erskine. Most undoubtedly should order such commitments more circum- the success of the bill is in a very high degree spect and cautious in the exercise of that power to be attributed to the inflexible constancy and than otherwise they might be; that it would unremitted zeal, with which the latter of these 'tend to render their respective courses of pro- two great men had exerted the vast powers of ceedings less capricious, more consistent, and his eloquence in maintenance of those rights of more uniform, than they otherwise might be; juries, which the statute asserts. And a most that in consequence of those tendencies it striking illustration it is of the fallibility of such might probably by degrees produce an intelli- predictions, as that of Mr. Justice Blackstone in gible definite practical code, respecting con- Crosby's case, that whereas, previously to the tempts and the punishments for them; that if passing of the act of 32 Geo. 3, c. 60, disagree these consequences should ensue, 'confusion and ments and altercations between the court and the disorder' would be prevented rather than pro- counsel, and the jury, took place in a great promoted; and that, if from the operation of com- portion of the trials which were had on crimipetitions for pre-eminence, of erroneous no- nal prosecutions for libels; and notwithstandtions of dignity, or of any other cause, con- ing it had been declared as we have seen by ⚫ fusion and disorder' should in fact arise, such magistrates of the greatest learning, that the confusion and disorder' probably would not establishment of such a system would produce be infinite, but might be speedily, easily and infinite confusion and disorder; nevertheless so completely suppressed by a legislative defini- it is, that since the indisputable establishment tion of at least the limits of contempts, and of of this system, no confusion whatever has octhe punishments applicable to them. Predic- curred, the functions of judges and juries have tions of confusion, disorder,' and other mischief been executed within their respective limits; to ensue from interruption of the exercise of without any competition for jurisdiction; to the irregular powers, have not always been verified. advancement of justice, and to the dignity of When the powers of issuing general warrants its administration. The change which has and warrants for seizure of papers, which had been operated by the statute cannot be more been sanctioned by numerous precedents, were perspicuously stated, nor can its beneficial questioned (See the cases in this Collection of effects be more happily illustrated than in the Leach v. Money, and others, A. D. 1765, and of following passage, which I extract from a note Entick v. Carrington, and others, in the same on the subject of the trial of the dean of St. year), many such predictions were made, but Asaph' in the Speeches of the honourable since the exercise of those powers has been an- Thomas Erskine' (now lord Erskine), &c. vol. nulled, I have not met with any complaint (except 1, p. 382. indeed one which occurs in sir John Hawkins's life of Dr. Johnson, but which is too frivolous to deserve notice; it relates to the detention of artizans who attempt to emigrate) that this annulment has produced a single bad consequence. In like manner while the judges claimed the right of deciding two questions of fact (for such they are), viz. those of intention' and of tendency' in criminal prosecutions for libels, which claim was supported by the precedents of Clarke's case, before lord Raymond, of Francklin's case before the same judge (in this Collection, A. D. 1731,) and of numerous other cases, it was repeatedly stated by magistrates of transcendant talents, learning, experience and authority (such, for instances, as lord Mansfield, lord Thu low, lord Kenyon, and Mr. Justice Buller,) that muite disorder and confusion would ensue, if juries had the The venerable and learned Chief Justice [lord Mansfield] undoubtedly established by his argument, that the doctrine so soon afterwards condemned by the unanimous sense of the Legislature when it passed the Libel Act, did not originate with himself; and that he only pronounced the law as he found it, established by a train of modern decisions. But, supported as we now are by this judgment of Parliament, we must venture humbly to differ from so truly great an authority. The Libe Bill does not confer upon the Jury any jurisdiction over the law, inconsistent with the general principle of the constitution: but considering that the question of libel or no libel is frequently a question of fact rather than of law and in many cases of fact and law almost inseparably blended together; it directs the Judge as in other cases, to deliver his opinion to the |