Imágenes de páginas
PDF
EPUB

sex, in the room of John Wilkes, Esquire, who is adjudged incapable of being elected a Member to serve in this present Parliament, and whose Election for the said County has been declared void.

(C.J. xxxii. 228.)

Then the Question being put, That Henry Lawes Luttrell, Esquire, ought to have been returned a Knight of the Shire to serve in this present Parliament for the County of Middlesex:

The House divided.

The Yeas went forth. [The votes were 197-143.]

So it was resolved in the affirmative.

Ordered, That the Deputy Clerk of the Crown do amend the Return for the County of Middlesex, by rasing out the name John Wilkes Esquire, and inserting the name of Henry Lawes Luttrell Esquire, instead thereof.

And the Deputy Clerk of the Crown, attending according to order, amended the said Return accordingly.

(C.J. April 15, 1769.)

And a Motion being made, and the Question being put, That Henry Lawes Luttrell, Esquire, is duly Elected a Knight of the Shire to serve in this present Parliament for the County of Middlesex;

The House Divided.

The Noes went forth. [Votes 221-152].

So it was resolved in the affirmative.

(C.J. May 8, 1769.)

II

THE LORDS' PROTEST

1st, Because the resolution1 proposed was in our judgment highly necessary to lay the foundation of a proceeding which might tend to quiet the minds of the people, by doing them justice, at a time when the decision of the other House, which appears to us inconsistent with the principles of the Constitution, and irreconcileable to the law of the land, has spread so universal an alarm, and produced so general a discontent throughout the kingdom.

1 Moved by Lord Rockingham, "that the House of Commons in the exercise of its judicature in matters of election is bound to judge according to the law of the land, and the known and established custom of Parliament which is part thereof." Negatived by 47-96. This resolution had already been moved in the Commons by Mr. Dowdeswell and practically defeated by an amendment.

2ndly, Because, although we do not deny that the determination on the right to a seat in the House of Commons is competent to the jurisdiction of that House alone, yet, when to this is added, that whatever they in the exercise of that jurisdiction think fit to declare to be law, is therefore to be considered as law, because there lies no appeal, we conceive ourselves called upon to give that proposition the strongest negative; for if admitted, the law of the land (by which all courts of judicature, without exception, are equally bound to proceed) is at once overturned, and resolved into the will and pleasure of a majority of one House of Parliament; who, in assuming it, assume a power to over-rule at pleasure the fundamental right of election, which the Constitution has placed in other hands, those of their constituents: and if ever this pretended power should come to be exercised to the full extent of the principle, the House will be no longer a representative of the people, but a separate body altogether independent of them, self-existing and self-elected.

3rdly, Because we are told that expulsion implies incapacity, and the proof insisted upon is, that the people have acquiesced in the principle by not re-electing persons who have been expelled; we equally deny the position as false, and reject the proof offered as in no way supporting the position to which it is applied. We are sure the doctrine is not to be found in any statute or lawbook, nor in the Journals of the House of Commons, Neither is it consonant with any just or known analogy of law. And as not re-electing would at most but infer a supposition of the electors' approbation of the grounds of the expulsion, and by no means their acquiescence in the conclusion of an implied incapacity, so were there not one instance of a re-election after expulsion but Mr. Woolaston's,1 that alone demonstrates that neither did the constituents admit, nor the House of Commons maintain incapacity to be the consequence of expulsion. Even the case of Mr. Walpole2 shews, by the first re-election, the sense of the people, that expulsion did not infer incapacity; and that precedent too, which is the only one of a declaration of incapacity, produced as it was, under the influence of party violence, in the latter days of Queen Anne, in so far as it relates to the introduction of a candidate having a minority of votes, it decides expressly against the proceedings of the House of Commons in the late Middlesex Election.

4thly, Because, as the Constitution hath been once already destroyed by the assumption and exercise of the very power which is now claimed, the day may come again when freedom of speech may be

1 Expelled February 20, 1699, because he was a receiver of taxes.

2 Expelled January 15, 1712, for "notorious corruption."

criminal in that House, and every member who shall have virtue enough to withstand the usurpations of the time, and assert the rights of the people, will for that offence be expelled by a factious and corrupt majority; and by that expulsion rendered incapable of serving the public: in which case the electors will find themselves reduced to the miserable alternative of giving up altogether their right of election, or of choosing only such as are enemies of their country, and will be passive at least, if not active, in subverting the Constitution.

5thly, Because, although it has been objected in the debate, that it is unusual or irregular in either House of Parliament to examine into the judicial proceedings of the other, whose decisions, as they cannot be drawn into question by appeal, are, it is said, to be submitted to without examination of the principles of them elsewhere; we conceive the arguments go directly to establish the exploded doctrine of passive obedience and non-resistance, which, as applied to the acts of any branch of the supreme power, we hold to be equally dangerous; and though it is generally true, that neither House ought lightly and wantonly to interpose even an opinion upon matters which the Constitution hath entrusted to the jurisdiction of the other, we conceive it to be no less true, that where under colour of a judicial proceeding, either House arrogates to itself the power of the whole legislature, and makes the law which it professes to declare; the other not only may but ought to assert its own right and those of the people; that this House has done so in former instances, particularly in the famous case of Ashby and White, in which the first resolution of the Lords declares, 'that neither House of Parliament hath any power by any vote or declaration to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament.' We ought to interfere at this time, the rather as our silence on so important and alarming an occasion might be interpreted into an approbation of the measure, and be a means of losing that confidence with the people which is so essential to the public welfare, that this House, the hereditary guardians of their rights, should at all times endeavour to maintain.

6thly, Because, upon the whole, we deem the power, which the House of Commons have assumed to themselves, of creating an incapacity, unknown to the law, and thereby depriving, in effect, all the electors of Great Britain of their valuable right of free election, confirmed to them by so many solemn statutes, a flagrant usurpation, as highly repugnant to every essential principle of the Constitution, as the claim of ship-money by King Charles I., or that of suspending

and dispensing power by King James II. This being, indeed, in our opinion, a suspending and dispensing power assumed and exercised by the House of Commons, against the ancient and fundamental liberties of the Kingdom.

[blocks in formation]

(L.J. February 2, 1770; Rogers, P.L. ii. 101 et seq.)

III

The House was moved, That the entry in the Journal of the House, of the 17th Day of February 1769, of the Resolution, "That John Wilkes, Esquire, having been in this Session of Parliament expelled this House, was and is incapable of being elected a Member to serve in this present Parliament," might be read.

And the same being read accordingly; A Motion was made, and the Question being put, That the said Resolution be expunged from the Journals of this House, as being subversive of the Rights of the whole Body of Electors of this Kingdom;

[blocks in formation]

So it was resolved in the affirmative.

And the same was expunged, by the Clerk, at the Table accordingly.

(C.J. xxxviii. 977.)

XVIII

THE CASE OF BRASS CROSBY

11 Geo. III., 1771.

[The House of Commons previous to 1771 had repeatedly declared the publishing of debates to be a breach of privilege. In 1771, in consequence of a motion of Col. Onslow, various printers were ordered to attend at the bar of the House. One of them, Whible, refused and was ordered into custody; instead, he was collusively apprehended by a friend and brought before Wilkes as an alderman of the city of London, who promptly discharged him. Shortly after another printer, Miller, was apprehended on a warrant from the Speaker, but gave the messenger into custody for assault. The case came before the Lord Mayor (Brass Crosby) and Aldermen Wilkes and Oliver. They discharged Miller, thus defying the authority of the House of Commons and bringing the city into conflict with it. The Lord Mayor, who was a member of Parliament, was finally committed to the Tower for a breach of privilege (see Excerpt I.). The commitment caused a tremendous ferment. A writ of Habeas Corpus was moved for, thus raising the question whether the commitment by a warrant from the Speaker was legal (see Excerpt II.). By ordering the remandment of the prisoner the Court of Common Pleas decided that it was, and the extract is taken from the judgment of Chief Justice Grey, which gives the grounds of the decision. As a result of the struggle the House of Commons, though not abandoning the claim that publication of debates was a breach of privilege, practically ceased to enforce it. The case therefore marks an epoch in the history of the relations of Parliament to the public Press. See The Chatham Correspondence, vol. iv.; The Letters of Junius; The Annual Register for 1771; May, C.H.E. ii. 34–59; Anson, L.C. i. ch. v.; Broom, L.C. 901-964; and the analogous case of The Sheriff of Middlesex, p. 388.]

I

Resolved, That Brass Crosby, Esquire, Lord Mayor of the City of London, having discharged out of the custody of one of the Messengers of this House J. Miller (for whom the News Paper, intituled, "The London Evening Post, from Thursday, March 7, to Saturday, March 9, 1771," purports to be printed, and of which a Complaint was made in the House of Commons, on the 12th Day of this Instant March, and who, for his Contempt, in not obeying the Order of this House, for his Attendance on this House upon Thursday the 14th Day of this Instant March, was ordered to be taken into the custody of the Serjeant at Arms or his Deputy, attending this House, and who, by virtue of the Speaker's Warrant, issued under the said Order, had been taken into the Custody of the said

[ocr errors]
« AnteriorContinuar »