« AnteriorContinuar »
This being premised, the first objecconfidered, it will be found that tion is to the generality of this resolu. 210 Tbe Beauties of all ibe MAGAZINES seleEted: held, and ought not to hold in the case they both breathe the same spirit, and of any criminal prosecution whatsoever; grow out of the same principle. by which, all the records of parliament,
The offences that call for surety and all history, all the authorities of the Habeas Corpus, are both cases of pregravest and soberelt judges are entirely sent continuing violence, the proceedrescinded ; and the fundamental prin. ings in both have the fame end, viz. ciples of the constitution, with regard to repress the force and to disarm the to the independence of parliament, torn offender. . up and buried under the ruins of our The proceeding stops in both when moft establiced rights.
that end is attained ; the offence is not We are at a loss to conceive with prosecuted nor punished in either ; the what view such a sacrifice thould be necessity is equal in both, and if privi. proposed, unless to amplify, in effect, lege was allowed in either, so long as the jurisdiction of the inferior, by an- the necessity lasts, a Lord of Parliament nihilating the ancient immunities of would enjoy a mightier prerogative than this superior court.
the crown itself is intitled to. Lastly, The very question itself, proposed to they both leave the prosecution of all us from the Commons, and now agreed misdemeanours still under privilege, and to by the Lords, from the letter and do not derogate from that great fundaspirit of it contradicts this affertion; mental, that none shall be arrested in for, whilst it only narrows privilege in the course of prosecution for any crime criminal matters, it establishes the prin- under treason and felony. ciple. The law of privilege, touching These two orders comprise the whole imprisonment of the persons of Lords law of privilege, and are both of them of Parliament, as stated by the two standing orders, and consequently the kanding orders, declares generally, That fixed laws of the House, by which we are no Lord of Parliament, sitting the par- all bound, until they are duly repealed. liament, or within the usual times of The resolution of the other House privilege of parliament, is to be impri- now agreed to, is a direct contradiction foned or restrained without fentence or to the rule of parliamentary privilege, order of the House, unless it be for trea. laid down in the aforesaid standing orfon or felony, or for refufing to give ders, both in letter and spirit. Before security for the peace, and refusal to pay the reasons are stated it will be proper obedience to a writ of Habeas Corpus. to premise two observations :
The first of these orders was made First, That in all cases where fecuriafter long consideration, upon a dispute ty of the peace may be required, the with the king, when she precedents of Lord cannot be committed till that seboth Houses had been fully inspected, curity is refused, and consequently the commented upon, reported, and enter- magistrate will be guilty of a breach of ed in the journals, and after the king's privilege if he commits the offender council had been heard. It was made without demanding that security. in sober times, and by a House of Peers, Secondly, Altho' the security should not only loyal, but devoted to the crown; be refused, yet, if the party is committed and it was made by the unanimous con- generally, the magistrate is guilty of a fent of all, not one dissenting. These breach of privilege, because the party circumstances of folemnity, deliberation, refusing ought only to be committed till and unanimity, are so fingular and exo he has found fureties ; whereas, by a traordinary, that the like are scarce to general commitment, he is held fast
, be found in any instance among the re. even tho' he should give fureties, and cords of parliament.
can only be discharged by giving bail When the two cases of surety for the for his appearance. peace and Habeas Corpus, come to be
tion, which, as it is penned, denies the Secondly, But if a libel could possibly,
Because none can be so bound, unless
Because no libeller, in fact, was ever beas Corpus.
so bound : If privilege will not hold throughout Because no crown-lawyer, in the most in the case of a seditious libel, it must despotic times, ever infifted he should be because that offence is such a breach be so bound, even in days when the press of the peace, for which sureties may be swarmed with the most invenomed and demanded ; and if it be so, it will rea. virulent libels, and when the prosecudily be admitted, that the case comes tions raged with such uncommon fury within the exception, “ Provided al- against this species of offenders; when ways, that fureties have been refused, the law of libels was ransacked every and that the party is committed only term; when loss of ears, perpetual imtill he shall give sureties.”
prisonment, banishment, and fines of But first, this offence is not a breach ten and twenty thousand pounds, were of the peace; it does not fall within any the common judgment in the star chamdefinition of a breach of the peace, given ber, and when the crown had assumed by any of the good writers upon that an uncontroulable' authority over the subject; all which breaches, from me. press. nace to actual wounding, either alone or Thirdly, This resolution does not on. with a multitude, are described to be ly infringe the privilege of parliament, acts of violence against the person,goods, but points to the restraint of the persoor possessions, putting the subject in fear nal liberty of every common subject in by blows, threats, or gestures. Nor is these realms, seeing that it does, in efthis case of the libeller ever enumerated fect, affirm, that all men, without exin any of these writers among the ception, may be bound to the peace for breaches of peace; on the contrary, it this offence. is always described as an act tending to By this doctrine, every man's liberty, excite, provoke, or produce breaches privileged as well as unprivileged, is lurof the peace ; and although a secretary rendered into the hands of a secretary of tate may be pleased to add the en- of state : be is by this means empowerAlaming epithets of treasonable, traiter. ed, in the first instance, to pronounce ous, or seditious, to a particular paper, the paper to be a seditious libel, a matter yet no words are strong enough to alter of such difficulty, that fome have prothe nature of things. I'o say then, that tended, it is too high to be intrusted to a libel, possibly productive of such a con. a special jury, of the tirit rank and con. sequence, is the very consequence fo dition ; be is to underitand and decide produced, is, in other words, to declare, by himself, the meaning of every inuthat the cause and the effect are the endo ; be is to determine the tendency
thereof, and brand it with his own epiEca
thets; he is to adjudge the party guil When the case of the Habeas Corpus ty, and make him author or publicer is relied upon, as a precedent to enforce as he sees good ; and lastly, he is to the declaration, the argument only give sentence by committing the party. thews, that the mischief afore-mention
All these authorities are given to one ed has taken place already, fince one fingle magistrate, unaslisted by council, alteration, tho' a very just one, not at evidence, or jury, in a case where the all applicable to the present question, is law says, no action will lie against him, produced to justify another that is unbecause he acts in the capacity of a judge. warrantable.
From what has been observed, it ap But it is strongly objected, that if pears to us that the exception of a sedi- privilege be allowed in this case, a lord tious libel from privilege, is neither of parliament might endanger the confounded on usage or written precedents, ftitution by a continual attack of sucand therefore this resolution is of the cessive libels; and if such a person first impression ; nay, it is not only a fhould be suffered to escape, under the new law, narrowing the known and shelter of privilege, with perpetual im. antient rule, but it is likewise a law ex punity, all government would be overpoft fakto, pendente lite, et ex parte now turned, and therefore it is inexpedient first declared to meet with the circum- to allow the privilege now, when the ftances of a particular case; and it time of privilege, by prorogations, is must be farther considered, that this continued for ever without an interval. house is thus called upon to give a fanc This objection shall be answered in tion to the determinations of the other, two ways. 18, If inexpediency is to dewho have not condescended to confer stroy personal privilege in this case of a with us upon this point, till they had feditious libel, it is at least as inexpepre-judged it themselves.
dient, that other great misdemeanors This method of relaxing the rule of should stand under the like protection privilege, case by case, is pregnant with of privilege; neither is it expedient, this farther inconvenience, that it ren- that the smaller offences should be exders the rule precarious and uncertain. empt from prosecution in tbe person of Who can foretel where the house will a lord of parliament ; so that if this arStop, when they have by one infringe. gument of inexpediency is to prevail, ment of their own standing orders, it must prevail throughout, and fubvert made a precedent, whereon future in the whole law of privilege in criminal fringements may, with equal reason, matters ; in which method of reasoning be founded ? How shall the subject be there is this 'fault, that the argument able to proceed with safety in this pe- proves too much. rilous business? How can the judges de If this inconvenience be indeed grie
cide on these or the like questions, if vous, the fault is not in the law of priprivilege is no longer to be found in re. vilege, but in the change of times, and cords and journals, and itanding or. in the management of prorogations by ders ? Upon any occasion privilege may the servants of the crown, which are be enlarged, and no court will venture, so contrived, as not to leave an hour for the future, without trembling, ei- open for justice. Let the objection nether to recognize or to deny it. vertheless be allowed in its utmost ex
We manifestly see this effect of ex. tent, and then compare the inexpedi. cluding, by a general resolution, one ency of not immediately profecuting bailable offence from privilege to.day, on one side, with the inexpediency of that it will be a precedent for doing to stripping the parliament of all protectiby another, upon some future occalion, on from privilege on the other. Untill, instead of privilege holding in every happy as the option is, the public would cafe not excepted, it will, at last, come rather wish to see the prosecution for to hold in nonc, but such as are ex. crimes fuspended, than the parliament pressly laved.
totally unprivileged, although, notwith It was not made to screen criminals, • standing this pretended inconvenience is but to preserve the very being and life To warmly magnified on the present oc- of parliament; for when our ancestors casion, we are not apprized that any such considered, that the law had lodged the inconvenience has been felt, though the great powers of arrest, indictment, and privilege has been enjoyed time imme- information, in the crown, they saw the morial.
parliament would be undone, it, during But the second and best answer, be. 'the time of privilege, the royal proceis cause it removes all pretence of grie. should be admitted in any misdemeanor vance, is this, that this house, upon whatsoever ; therefore they excepted complaint made, has the power (which none. Where the abuse of
power it will exert in favour of justice) to de- would be fatal, the power ought never liver up the offender to prosecution. to be given, because redress comes too
It is a dishonourable and an undeser late. ved imputation upon the lords, to lup A parliament under perpetual terror pose, even in argument, that they would of imprisonment, can neither be free, nourilh an impious criminal in their bo nor bold, nor honest; and if this privisoms, against the call of offended juf- lege was once removed, the most imtice, and the demand of their country. portant question might be irrecoverably
It is true, however, and it is hoped loft, or carried by a sudden irruption that this house will always see (as every of messengers, let loose against the magistrate ought that does not betray members half an hour before the debate. his trust) that their member is properly Lastly, as it has already been obsercharged ; but when that ground is once ved, the case of supposed libels is, of laid, they would be ashamed to protect all others, the most dangerous and athe offender one moment: surely this larming to be left open to prosecution truft (which has never yet been abused) during the time of privilege. is not too great to be reposed in the If the severity of the law, touching high court of parliament; while it is libels, as it hath sometimes been laid lodged there, the public justice is in safe down, be duly weighed, it must strike hands, and the privilege untouched; both houses of parliament with terror whereas, on the contrary, if for the and dismay. sake of coming at the criminal at once, The repetition of a libel, the delivewithout this application to the house, ry of it unread to another, is faid to personal privilege is taken away, not be a publication : nay, the bare poflefonly the offender, but the whole parlia- sion of it has been deemed criminal, inment, at the same time, is delivered up less it is immediately destroyed or carrito the crown.
ed to a magistrate. It is not to be conceived, that our Every lord of parliament then, who ancestors, when they framed the law hath done this, who is fallly accused, of privilege, would have left the case nay, who is, tho' without any inforof a seditious libel (as it is called) the mation, named in the secretary of state's only unprivileged misdemeanor. What. warrant, has lost his privilege by this ever else they had given up to the resolution, and lies at the mercy of that crown, they would have guarded the enemy to learning and liberty, the mel. case of supposed libels, above all others senger of the press. with privilege, as being most likely to For there, and many other forcible be abused by outrageous and vindictive reasons, we hold it highly unbecoming prosecutions.
the dignity, gravity, and wisdom of the But this great privilege had a much house of peers, as well as their justice, deeper reach, it was wisely planned, and thus judicially to explain away and dihath hitherto, thro' all times, been re- minish the privilege of their pertons, Tolutely maintained.
founded in the wildom of ages, declare
ed with precision in our standing orders, about a 'square of three yards : these fo repeatedly confirmed, and hitherto vacancies, being like tunnels of brick preserved inviolable by the spirit of our kilns, I filled with brushwood, and on ancestors, called to it only by the other that threw some cinders, or small-coal. house, on a particular occasion, and to of which I had sufficient quantities, serve a particular purpose, ex pof facto, then, living nigh some collieries ; after ex parte, et pendente lite, in the courts which I covered the whole Square with below.
clay about three inches thick, leaving Temple, Abergavenny, the ends of the tunnels open, which I Bolton, Fred. Litch. Cov. then lighted on the windward-Gide: as Grafion, Abburnbam, soon as the fire had got sufficient head, Cornwallis, Fortescue,
I stopt the mouths of them; and when Portland, Grantham, I perceived the covering was almost Bristol, Walpole,
burnt through, I had a small sprinkDevonshire, Ponsonby,
ling of cinders, or small-coal, thrown Scarborough, Folkestone.
on the heap, and then another covering
of clay of the same thickness ; and thus
When I found my fire was very well
kindled, which was commonly about On the method of burning Clay, and of the time I put my second coat on, I the benefit of it when used as a Ma- used to enlarge the base of the fire, by
continuing the tunnels, and by adding Observed our lands, (for I then liv. new ones to the sides, (which were fill
ing borne three crops of corn, which is lighted) till I made my fire about seven
Care should be taken the labourer then the produce diminished, and rulhes does not put on too thick a cpat at once, grew in abundance,
as it will be apt to smother the fire : This led me to think, that whatever besides, by confining the heat in too would contribute to keep the particles much, the clay was apt to run and vi. disunited would be of great service : trefy, which was then of little use. and further, I imagined, that clay or
As soon as the heap was fufficiently soil burnt would never re-unite ; which cool (for the sooner it is laid on the land proved a fact : moreover, that the salt the better) I put about ten large cartit gained by passing through the fire loads on a statute acre, and found it an would enrich the land, which appeared admirable manure for either meadow, from its produce when denshired; tho' pasture, or corn : for the latter it will I never approved of that husbandry, as not last more than three crops, though the soil was thereby diminished, which longer for the two former : and with is already too thin in that country, this I have made prodigious improveThis determined me to attempt burn. ments; but I dont believe it will aning clay, which I did in the manner swer for a fandy soil, as it will render following
it still lighter. I caused a labourer to dig as much This manure I burnt all times of the clay as made a number of walls of nine year, though flower in the winter than inches high, and of the same thickness, summer, but always faltelt in windy and the same distance from each other, weather. in a parallel direction, as would make This, I fancy, may be burnt with