of the Subject was gloriously established | punishment, he should say it was for an against unjustifiable attacks of power; offence against the state of which he was that this judge should, in direct opposition only the representative; could that reason to his Commentaries, deliberately adjudge us into the opinion that such an arbitrary that the Courts of Parliament and West- act was justice? but Sir W. Blackstone minster Hall have the sole power over has founded his decision, it may perhaps contempts, and that the punishment be said, on solid grounds which he has thereof in any manner belonged exclu- stated; for he says, " Infinite confusion and sively and without interference to each "disorder would follow, if courts could, court, seems so extraordinary, that it "by writs of Habeas Corpus, examine and leaves but the choice of this alternative, "determine the contempts of others." that either the head or the heart of Sir Now let us see what this confusion, what William had greatly degenerated. If the this disorder is, that would be the consemost inveterate enemy of slavery, were to quence of divesting courts, (supposing select for abhorrence a trait of Eastern them for a moment to possess it) of this despotism, what one more revolting arbitrary power, for on that the judge is could he select to an English mind, than silent. And this leads me to enquire, that there existed a rule, that those who first, what is a contempt of court? I take were appointed to administer justice, every act which interrupts or prevents the should, when offended themselves, inflict administration of justice to be a contempt without controul what punishment they of the court where such a consequence chose on the offenders? Could any thing takes place. And I take contempt of more absurd be insisted on to any mind court in its fair, legitimate interpretation, embued with the smallest conception of to mean no more: nor can any other case the attributes of justice. Sir W. Black- arise, as I conceive, where summary atstone has however so declared the right of tachment can be necessary. If I were to the judges of England-he has done far assert that the laws in every court of worse; he has ventured to denominate justice in this kingdom (which I however. this arbitrary power, law. For the of-verily believe not to be the case) are fended to judge of the injury, and inflict what punishment they please, is law. Despotic power then is law-most refined and pure too this law must be, for it is especially for the guidance of those who administer justice, under the most difficult and delicate of all possible circumstances, that, where they are themselves the interested parties.* Shall we ever again find an advocate for the privileges of the House of Commons to cite this doctrine of Sir W. Blackstone as law?" It blurs the face of modesty" but to recall the case to one's memory. But perhaps we may have some ingenious special pleader gravely telling us, that it is a contempt of court of which Sir W. Blackstone speaks, and that it is the court, and not the judge that is offended. The naked walls of Westminster Hall, no doubt, that are offended, What if his present majesty were to possess, as the chief estate, such a power, would it be the less despotic, that when he inflicted voluntary

corruptly administered, I apprehend his Majesty's Attorney General would file an Information, ex officio, against me; but would it be contended that each court. might proceed by the summary process of attachment, and commit me, without any information being exhibited? And why is not this libel, it may be said, by bringing the administration of justice into disrepute, as much a contempt of court as any other? Ianswer, because the proceedings of no court are thereby prevented or interrupted; and for that reason a summary power becomes unnecessary. The ground of summary commitment, I take to be, that every interruption of justice is a breach of the peace, for which the offender is punishable; and to answer the offence, the commitment of the offender becomes necessary. The same power is invested in an ordinary magistrate, who if he personally see a breach of the peace, has the right of committal. Now in this way, the summary proceeding of attaching the person appears intelligible; but carry it farther, and insist on the right of the judge or magistrate to inflict arbitrary punishment, and the power becomes quite absurd, and devoid of all reason.-When the judge commits for the contempt, why would it occasion infinite disorder, if ano

PAN

impose a fine; and I understand this proposition stands conceded by the House at this moment. Now this I consider to be a most important circumstance in the reasoning on the Privileges of the House, and which on due attention will determine the question. If the House have the sole right of judging of a contempt, and of punishing the offender, how does it happen that the Commons cannot commit for any definite time, or impose any fine? I should very much wish any gentleman to shew me the consistency in the right claimed, and the restriction admitted; how they can on any possible view be made to accord: how they can co-exist. I do not expect a satisfactory answer which can justify the privilege claimed; but I will venture to point out a mode of reasoning resulting from the restriction which I think will be satisfactory, and which strongly tends to

mons are disabled from inflicting punishment. The power of commitment for any thing which interrupts the proceedings in the House of Commons, is what I have no objection to concede; it seems reasonable, and what ought to be inherent in every Court, House, or Assembly of legitimate authority. But this committal is, I contend, not as a punishment, but only as a necessary preliminary to judicial investigation. Now the restriction from com

ther court could interfere by Habeas Corpus, and ascertain and adjudge the punishment due to the crime? Is it to be apprehended that no other court would decide justly, but the court where the offence originated that indeed would be a libel on justice-what if the offender should be punished only with such severity for this breach of the peace, that he should contumaciously offend again? Would not the judge again commit him, and would not any other court just as well consider the aggravated crime, as the judge who had been a second time offended? I am quite unable to discover the confusion that would follow in this case. On the contrary the converse of these proceedings, as maintained by Blackstone, if it lead not to confusion, it overturns at least all the barriers of political liberty, and subverts the very ends of justice. Considering the admirable Essays on the Laws and Constitution of Eng-establish the proposition that the Comland, which have been so exquisitely compiled by Sir William Blackstone under the title of Commentaries, I should propose as a tribute of gratitude for so valuable a performance, that the Case of Brass Crosby be for ever obliterated from the Legal Reports; that the memory of that able man may no longer be disgraced, with so weak, so feeble a performance, as his decision and reasoning there exhibit. Now, Sir, with respect to the House of Commons, it will be seen in Judge Black-mitments for a definite period, and the asstone's decision, (beyond which, I apprehend, the most strenuous advocate for arbitrary power will not advance,) that that House is assimilated in point of power in commitments, to the courts of Westminster Hall. Their powers in cases of contempt appear to be co-equal. Now if the courts of Westminster Hall have no such power as that contended for by the House of Commons, I mean the power of punish-time certain, presupposes an offence, the ing ad libitum, and that they cannot, I extent and delinquency of which has been think must be unquestionable to every ascertained; the limited time of imprireasonable man, why then it follows the sonment being the punishment adequate House of Commons cannot have it; for to the crime. For there is no other printhe power of that House is said to be ana-ciple for confining a man for a day and logous to that of the Courts of Record. But I think it will appear clear that the House of Commons, without adopting such analogy, does not possess the power of punishing for contempts. Mr. Fox, whose knowledge must have been considerable upon

this constitutional and important question, in his Letter to Mr. Perry published lately in the Morning Chronicle, asserts, that the House of Commons, clearly cannot imprison for a time certain, nor

sessment of a fine, most clearly evidence the accuracy of what I have stated. For when we consider for a moment, we shall find the distinction between commitment and commitment for a determinate period, however limited the latter, though it were only for an hour, to be founded on totally different principles. The latter, or commitment for a

then liberating him, but that of punishment. It must be the latter, or absolute despotism. The fine certainly admits of the same reasoning, and leads to the same conclusion. It must be either a legal infliction of punishment, or it must be arbitrary power. But the House of Commons, I submit, cannot punish, because they are not a Court of Judicature; for they cannot examine upon oath, one of the indispensible fea

"be not known, because if known, they " might be evaded ;" and again this gentleman says, "If imprisonment for debt "is to be justified on the ground of

tures of such a court; and because if they were a Court of Judicature, they could not judicially investigate an offence committed against themselves, and award a punishment due to the crime. If this" punishment, it should be observed, be denied, let it be pointed out upon "that in this respect it differs from the what principle of common sense the punishment of all other crimes, that a House is restricted from inflicting depower of pardoning exists no where but finite imprisonment, or imposing a fine. "in the offended creditor."* I hope it It will not be said the House is restrained may be considered, Mr. Cobbett, an exfrom the former power, because if a cusable digression, if I make an obserdefinite period of Imprisonment were vation on the circumstance of two such awarded, the House might be dissolved considerable men as Dr. Paley, and before the time expired, and that their Sir Samuel Romilly, speaking gravely powers would cease to exist. This would and seriously of unknown laws. It is with be an absurd answer, because it would great submission I say it, and I should Just as strongly apply against the pu- not say it but that I deem it important, nishment awarded by a Judge, who might that it is entirely a perversion of sense, to before the expiration or infliction of the talk of an unknown law, in the political punishment, be either dead, or removed view in which Dr. Paley and Sir Samuel by impeachment; or might have retired. Romilly both use this word. Publicity is I cannot therefore but feel, that the re- the very essence of its definition: under strictions I have mentioned, point out every established government, laws mean the line of demarcation in respect of the a code or body of rules for the regulation Privileges of the House in a most clear of the state; a breach or non-observance and forcible manner; thereby making whereof is criminal; but it cannot be a their Privileges extending to commitment, crime to disobey rules which no man can consistent with the laws of the land, and ascertain to exist. An Eastern Potentate not a virtual repeal of the land-marks might determine, that every one of his of the constitution, which, as it should subjects who should happen to pass seem to me, would conclusively follow an his palace at a certain hour should be extension of the powers of the House of decapitated, and this resolution might Commons to the degree insisted upon, no doubt be kept by this sovereign in viz. of punishing at pleasure. The rea- petto. Now, that this would be an exsoning which occurred to Sir Samuel traordinary exercise of arbitrary power Romilly, in considering the state of our there could be no question, but surely it penal laws, in his argument to shew the could not be termed law. In the politiimpropriety of leaving any thing discre- cal sense in which "law" is used, Dr. tionary with a judge, is similar to what Johnson has given a clear definition; it I have been contending for: Sir Samuel says is, says the Doctor, "A decree, edict, sta"unknown laws are the same as non-ex- "tute, or custom, publicly established as a "isting laws. It is a necessary conse- "rule of justicet." Law and Political Liquence of knowing what actions are berty are words to an Englishman, of very "punishable by law, that it should also valuable import, and synonymous in their "be known what a man may do without meaning; and nothing can be more es"fear of punishment; and it is not," he sential, than that there should be no continues," a little extraordinary, that vague and loose interpretation of a word, "in a country in which men have been which, if it admitted the alarming quality "accustomed to think that one of the supposed by the above gentlemen, would "greatest political blessings they enjoyed, undoubtedly place Englishmen in danger "was that they lived in the security which of being law-less. I have already oc"known and certain laws afforded them, cupied too many of your pages, Mr. "we should be told by a writer of such high Cobbett, and I will now endeavour to "character, and such extraordinary merit conclude with what brevity I am able. "as Dr. Paley,† that it is good that laws I am at a loss to ascertain why Magna Charta should not in its operation be held to relate to the House of Com

*

* Sir Samuel Romilly on the Criminal Law.

+ Dissertation on Crimes and Punishments, vid. Mor. et Polit. Phil.

*Note, c. 42.

+ Dictionary, voce, "law."

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The words " per legem terræ,” "himself bound never to pay the least it may be pretended, apply to the privi-" regard to them." regard to them." But then with that leges in question; but considering that flexibility; with that peculiar quality of the house where these privileges are said mingling light with shade, which his Lordto have a place, had an ex post facto exist- ship possessed, thereby frittering strong ence, the inference seems uncommonly and clear passages into unintelligible obstrained. But what, let me ask, will be scurity; he proceeded to observe in the said to the statute which passed in the same Speech. That for his own part, 28th of Edward 3*, which enacts "That "wh ever the statute law was silent, he no man of what estate or condition so- "knew not where to look for the law of "ever, shall be put out of his land or Parliament, or for a definition of the "tenement, nor taken, nor imprisoned, Privileges of either house, except in the "nor disinherited, nor put to death, with- "proceedings and decisions of each house "out being brought in to answer by due respectively." But can it be said, after process of law." Will it be attempted Magna Charta, and the still stronger deto be argued, that the Speaker's Warrant claration in favour of the Liberty of the is due process of law within the meaning Subject enacted in the reign of Edward 3, of this statute? If not, is this stature re- could my Lord Mansfield have said, in this pealed on the contrary, it is stated by instance, that the statute law was silent} note in the statute books, to have been If not, how are the Privileges in question recognised and confirmed by that memo- to be defended. But even with that qualirable statute which abolished the Court of fication, of the silence of the statute law, Star Chamber, and gave the writ of in the Case that then occurred, Lord CamHabeas Corpus; a statute of which an den, that able and enlightened statesman able author thus speaks, "We must ad- and lawyer, and who in consequence resign"mire, as the key stone of Civil Liberty, ed the seals, in unison with that yet greater the statute which forces the secrets of man Lord Chatham, opposed the doctrine every prison to be revealed, the cause of Lord Mansfield, and the Privileges "of every commitment to be declared, claimed by the Commons, as subversive " and the person of the accused to be pro- of the constitution. "What then, my "duced, that he may claim his enlarge"Lords," said Lord Chatham," are all "ment or his trial, within a limited time, "the generous efforts, the glorious con"No wiser form was ever opposed to the "tentions of our ancestors reduced to this "abuses of power. But it requires a fa- "conclusion, that, instead of the arbitrary "power of a King, we must submit to the "arbitrary power of a House of Commons? Tyranny, my Lords, is in no shape so formidable as where it is assu"med and exercised by a number of ty"rants: But, my Lords, this is not the

"bric no less than the whole Political "Constitution of Great Britain, a spirit no "less than the refractory and turbulent" "zeal of this fortunate people, to secure "its effects." + During the contest respecting the Middlesex Election in the time of Mr. Wilkes, Lord Chatham made" constitution; for we all know that the several motions grounded on the illegality "first principle of the constitution is that of the powers assumed by the House of the subject shall not be governed by the Commons. These motions were opposed "arbitrium of any one man or body of by the then Chief Justice, Lord Mans- "men, but by certain laws to which he field; but notwithstanding the strong sup- "has virtually given his assent." These port which power and prerogative had Sir, are the authorities, which the small ever met with in this Judge, it is deserv- portion of time I have been able to afford ing of consideration, what cautious and to the very important subject under disambiguous language his Lordship used cussion, have fallen under my observation. with regard to the Privileges of the Com-Trifling must be the reasoning required mons. He said, "Declarations of the "law made by either House of Parlia"ment, were always attended with bad "effects; he had constantly opposed "them, whenever he had opportunity, "and in his judicial capacity thought

to prove that the precedent which is founded on usage, can never prevail against those acknowledged principles of Justice, which are as immutable as their great Author, who in the plenitude of his goodness, has so strongly impressed them upon our understandings; these, no so

* Debates 1770.