Imágenes de páginas
PDF
EPUB

"Your lordships having desired the last Conference upon matters of high importance concerning the dignity of the king, and the safety of the government; the Commons did not expect to hear from your lordships at that Conference, things so contrary to, and inconsistent with, the matter upon which the said Conference was desired, as were then delivered by your lordships.

"It was much below the expectation of the Commons, that, after a representation in your lordships' message of matters of so high importance, the particular upon which the Conference was grounded, should be only the commitment of four lawyers to the custody of their own serjeant at arms, for a manifest violation of the privileges of their House.

"But the Commons were much more surprised, when your lordships had introduced the Conference, with an assurance it was in order to a good correspondency between the two Houses, that your lordships should immediately assume a power to judge the order of the House of Commons, for the imprisonment of Mr. Serjeant Peck, Sir John Churchill, Mr. Serjeant Pemberton, and Mr. Charles Porter, to be illegal and arbitrary, and the execution thereof a great indignity to the king's majesty, with many other high reflections upon the House of Commons, throughout the whole Conference; whereby your lordships hath condemned the whole House of Commons as criminal: Which is without precedent, or example, or any ground of reason so to do.

"It is not against the king's dignity for the House of Commons 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 parliament; and by himself in this.

"But your lordships claiming to be the supreme court, and that his majesty is highest in his royal estate in the court of judicature, there is a diminution of the dignity of the king; who is highest in his royal estate, in full parliament; and is derogatory to the authority of the whole parliament, by appropriating it to yourselves.

"The Commons did not infringe any privileges of the House of Peers, but only defend and maintain their own; On the other side, your lordships do highly entrench upon the rights and privileges of the House of Commons, denying them to be a court, or to have any authority or power of judicature; which, if admitted, will leave them without any authority or power to preserve themselves.

"As to what your lordships call a transcendental invasion of the rights and liberty of the subject, and against Magna Charta, the

Petition of Right, and many other laws; the House of Commons presume, that your lordships know, that neither the Great Charter, the Petition of Right, nor many other laws, do take away the law and custom of parliament, or of either House of Parliament; or else your lordships have much forgotten the Great Charter, and those other laws, in the several judgments your lordships have passed upon the king's subjects, in cases of privilege.

"But the Commons cannot find, by Magna Charta, or by any other law or ancient custom of parliament, that your lordships have any jurisdiction, in cases of appeal from courts of equity.

"We are further commanded to acquaint you, that the enlargement of the said persons imprisoned by order of the House of Commons, by the Gentleman Usher of the Black Rod; and the prohibition, with threats to all officers and other persons whatsoever, not to receive or detain them, is an apparent breach of the rights and privileges of the House of Commons: and they have therefore caused them to be retaken into the custody of the Serjeant at Arms, and hath committed them to the Tower.

"As to the Parliament-Roll of 1st Hen. 4, caused to be read by your lordships at the last Conference, but not applied, the Commons apprehend it doth not concern the case in question; for that this record was made upon occasion of judgments given by the Lords to depose and imprison their lawful king; to which the Commons were unwilling to be made parties; and therefore the Commons conceived it will not be for the honour of your lordships, to make further use of that record.

"But we are commanded to read to your lordships the ParliamentRoll of the 4th of Edward the 3rd, n. 6; which if your lordships please to consider, they doubt not but your lordships will find occasion to apply it to the present purpose."

(Commons Journals, June 4, 1675.)

Resolved, nem. con. That as to the case of Appeal, brought against sir John Fagg in the House of Lords, sir John Fagg shall have the protection and the assistance of this House.

Resolved, nem. con. That if any person or persons shall be aiding or assisting in putting in execution any Sentence or Judgment that shall be given by the House of Lords, upon the Appeal brought by Dr. Shirley, against sir John Fagg, a member of this House, such person and persons shall be adjudged and taken to be betrayers of the rights and liberties of the Commons of England, and the privileges of this House; and shall be proceeded against accordingly.

(Commons Journals, June 7, 1675.)

Resolved, nem. con. That no commoners of England, committed by order or warrant of the House of Commons for breach of privilege or contempt of that house, ought, without order of that House, to be by any writ of Habeas Corpus, or other authority whatsoever, made to appear, and answer, and do and receive a determination in the House of Peers, during the session of parliament, wherein such person was so committed.

(Commons Journals, June 9, 1675.)

(The King prorogued Parliament from June 9 to October 13.)

"Whereas this House hath been informed of several Appeals depending in the House of Lords, from Courts of Equity, to the great violation of the Rights and Liberties of the Commons of England; it is this day Resolved and Declared, 'That whosoever shall solicit, plead, or prosecute any appeal against any commoner of England, from any Court of Equity before the House of Lords, shall be deemed and taken a betrayer of the Rights and Liberties of the Commons of England; and shall be proceeded against accordingly.'" (Commons Journals, November 19, 1675.)

It is ordered by the Lords Spiritual and Temporal in parliament assembled, That this House will hear the said cause (Shirley v. Fagg), by counsel at the bar, on Monday the twenty-second instant, at ten of the clock in the forenoon. . . . And upon debate of the Commons Vote made yesterday, it was ordered, "That the Paper posted up in several places, signed by William Goldsbro, Cler. Dom. Com. against the Judicature of the House of Peers in Cases of Appeals from Courts of Equity, is illegal, unparliamentary, and tending to the dissolution of the government."

(Lords Journals, Nov. 20, 1675.)

(On November 22 the King again prorogued Parliament, which did not meet again until February, 1677.)

V

THE CASE OF BENJAMIN HARRIS

32 Charles II., 1680.

[Harris was tried for "causing to be printed and sold a libellous pamphlet. The charge of Chief Justice Scroggs to the jury illustrates the historic features of the case, and may be compared with that of Holt in Tutchin's case (p. 267). The jury tried to find Harris guilty "only of selling the book," but under pressure from the Judge brought in a verdict of guilty, and subsequently the court inflicted a fine of £500, the pillory for one hour, and the finding of sureties for good behaviour for three years. See S.T. vii. 926-932 and authorities on Tutchin's case.]

Because my brother shall be satisfied with the opinion of all the judges of England, what this offence is, which they would insinuate, as if the mere selling of such a book was no offence: it is not long since, that all the judges met, by the King's command: as they did some time before too: and they both times declared unanimously, that all persons that do write, or print, or sell any pamphlet, that is either scandalous to public or private persons; such books may be seized and the person punished by law that all books, which are scandalous to the government may be seized: and all persons so exposing them may be punished. And further, that all writers of news, though not scandalous, seditious, nor reflective upon the government or the state: yet if they are writers (as there are few others) of false news, they are indictable and punishable on that account. So that your hopes of any thing of that kind will be vain: for all the judges have declared this offence, at the common law, to be punishable in the seller, though in the way of his trade: the books may be seized, and the person punished. As for this book, in particular: you can hardly read a more low and pernicious book, to put us all into a flame. . . . Except the writer of it, there cannot be a worse man in the world and, Mr. Harris, if you expect any thing in this world, of this kind of favour, you must find out the author: for he must be a rebellious, and villainous traitor. . . . You (the Jury) have nothing more to do, but to give your verdict: If there be any thing in law, let me know it because you go out.

(From the charge to the Jury of Scroggs, C.J.)

...

Then one of the Jury asked my lord, if they might not have the book with them, which was then in the court, and it was answered in the negative.

(S.T. 7, 930.)

R

VI

THE CASE OF HENRY CARR

32 Charles II., 1680.

[Carr was tried before Lord Chief Justice Scroggs, and the nature of the case is sufficiently explained in the charge to the jury. The jury found him guilty, and were told by the Judge and the Recorder (Jefferies) they "had done like honest men." See S.T. vii. 1111-1130.]

The present case it stands thus: Mr. Carr, here in an information brought against him for publishing a printed pamphlet called, The Pacquet of Advice from Rome . . . the question is, Whether he was the author or publisher of this. If there be a known case in men's lives, certainly that should govern in offences, and especially when offences are of a nature that reflect upon the Government. As for those words, illicite, maliciose, unlawful: for that I must recite what Mr. Recorder (Sir Geo. Jefferies) told you of at first, what all the judges of England have declared under their hands. The words I remember are these: When, by the King's command, we were to give in our opinion what was to be done in point of the regulation of the press; we did all subscribe, that to print or publish any news books or pamphlets of news whatsoever, is illegal: that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicite, and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority. So as he is to be convicted for it as a thing illicite done, not having authority. And I will assure you, if you find any of those papers, I shall be more merciful in the consideration of their punishment, if it be inoffensive. But if so be they will undertake to print news foolishly, they ought to be punished, and shall be punished if they do it without authority, though there is nothing reflecting on the government as an unlawful thing. . . . Therefore this book, if it be made by him to be published, it is unlawful whether it be malicious or not. . . . If you find him guilty, and say what he is guilty of, we will judge whether the thing imports malice

« AnteriorContinuar »