K I T A I N. 



715 



1X10. 



Briiain. Mr Crosby, who was co:: n-.ittei!. iber of that 



*- 'y / house, for a breach of its privileges. T!. court of 

 ikoKGtlll. commoll pleas could not give any relief, because it 

 did not know what v , s of the House 



of Commons. The chief justice said the commit- 

 ment was lawful, because it was necessary ; and that 

 shewed, that if it had not been necessary, it would 

 not have been legal. The house had been told of 

 precedents and decisions of the courts of law. Of 

 those which had been mentioned, the first was in the 

 reign of the Tudors, and that was not a time (he 

 thought) to which the house should refer in defence 

 of its own privileges, a time when the house were 

 told, at the beginning of each session, that they were 

 not to meddle with matters of state ; and when Queen 

 Elizabeth repeatedly told the house, that they were 

 not to proceed any further in such and such cases. 

 The case of Arthur Hall had been referred to in 

 1580; was it any thing like the commitment of the 

 house ? No ; the sentence was to pay 500 merks, and 

 to be imprisoned six months or longer, till he made a 

 retraction. Was there any thing similar between the 

 cases ? Could the house now commit for an indefinite 

 time, or for six months ? Can it impose a fine, as 

 was done in those days ? He could himself cite many 

 cases, in which the house had, in those times, made 

 commitments of a most extraordinary nature, and 

 sentenced men to as extraordinary punishments. 

 There was one, of putting two men back to back 

 upon a horse, and leading them through the streets, 

 with a particular mark upon them. There was ano- 

 ther, in which a new and extraordinary punishment 

 had been invented by the house for the particular 

 offence. But were cases like these to be cited as pre- 

 cedents on the present occasion ? He was astonished 

 to see it attempted. With respect to the case of 

 Arthur Hall, Mr Hatsel takes notice of it in his book 

 of Parliamentary Cases, and says, that it was after- 

 wards declared to be derogatory to the dignity of the 

 house. These were, in fact, not deserving the name 

 of precedents ; but were mere exercises of authority, 

 for precedents are only the decisions of a legal judge. 

 The house had also in later times carried their au- 

 thority very high, in the resolutions which they from 

 time to time passed. There was a resolution of the 

 house, March 8th 1704, that no man, who had been 

 committed by the House of Commons, should dare 

 to sue for a habeas corpus ; but the resolutions of 

 the house were not the laws of the house." 



On the 7th of May, the speaker having informed 

 the house, that he had received two papers and let- 

 ters from Sir Francis B urdett, of an action which 

 the baronet meant to institute against him in the 

 *'aker thC Court of Kin g' 3 Bench the ensuing term ; a select 

 committee was appointed to inquire into the pro- 

 ceedings which had already past, and which ought 

 to be adopted in future, respecting the letter and no- 

 tice of Sir Francis. On the llth the committee 

 brought up their report, and, through their chair- 

 man, moved that the speaker and serjeant at arms 



r Francis 

 urdett 

 lites an 

 lion 



g 

 la 



should he permitted to appear in the Court of King'* ' : 

 Bench, and plead to the said actions ; and that the 

 alUirney-n'Mn ul :ln>;ild be instruct! d to d ii:.<ltln- 

 spTOker and Serjeant at arms.* In tlu- debate which 

 ensued on this report, while the high legal authority 

 of Sir Samuel Romilly was opposed to ministers, Mr the right ul 

 I'onsonby, who was regarded as ihc leader of the parliamtn- 

 Wbigs, spoke strenuously in favour of the right of 'V com " 

 parliamentary commitment, though he severely bla- " 

 itied the administration for bringing the house into 

 its present difficulty, by having brought their real 

 privileges to an unnecessary trial. Since the busi- 

 ness, however, had proceeded so far, he thought the 

 house could not retract from maintaining their right*. 

 The two houses of parliament, he said, were the sole 

 judges of their own privileges. No court in the 

 country, however respectable the judges, could, or 

 ought to presume to meddle with the decisions oi 

 either house. That was the first principle which he 

 should maintain. The next principle was, that when- 

 ever either house of parliament has declared its pri- 

 vileges, the courts of justice are bound to pay respect 

 and obedience to them. He quoted Lord Hale, 

 who asserts, that the law and constitution of parlia- 

 ment were founded on the law of the land, and must '** p ' 

 be taken as such ; that parliament cannot be adjud- i^oy 

 ed by any other court ; and that the judges of the 

 [and had so confessed in many instances. This opi- 

 nion Lord Hale took from Sir Edward Coke ; and 

 both agreed in distinctly stating, that the law of par- 

 liament was not merely so, but confessedly lex terra:. 

 Blackstone also had said, that the privileges of par- 

 liament were large and indefinite, and stated, that no 

 court could interfere with the decisions of parlLi 

 ment. Sir Robert Atkins, one of the judges of tl._ 

 common pleas, says expressly, that the power of par- 

 liament consists of three heads: a legislative, a judi- 

 cial, and a counselling power ; and that they have the 

 right of exercising the judicial power in defence of 

 their own privileges. In a case of disputed privi- 

 lege, it is true, Judge Holt had given as his opinion, 

 that if the right of privilege in all questions was to 

 be admitted, parliament would set no limits, and the 

 people's liberties might be invaded. To that opi- 

 nion the other eleven judges replied, that it was true : 

 but still there was no limit to their authority ; for 

 the law of the land trusted that they would not mis- 

 use their privileges. According to the constitution 

 of things, there never was a government in which 

 some discretionary power was not invested. It must 

 subsist somewhere. If the judges of the land were 

 guilty of malversation in their judicial capacity, the 

 house could punish them ; but where was the higher 

 authority than parliament ? There was none. It 

 might Le said that parliament was responsible. So 

 they were to the people. If the house acted wrong, 

 the people had their redress by election ; and, when 

 the appeal was made, they might remedy the mis- 

 chief which the former house had created, by elect- 

 ing other members in their room. The remedy was 



* The effect of these motions was, that the speaker and Serjeant should plead in bar to the said actions, t. e. that through 

 the attorney-general they should go into court, and put in the pita, that the privileges of the House of Commons were con- 

 cerned ; that the house was sitting, and ordered certain acts to be done ; that he, as speaker, had enforced those order:* ; thai 

 he did so by their authority : and that having done so by the order of the house, he pleaded in bar. and denio'l the a-itborii/ 

 if the court to interfere. 



