principal acquitted; that the House being both the party injured, and the judge of that injury, it became most indispensably necessary for justice, that every step should be taken which might give the fullest insight into the affair. The ministry did not oppose this delay. Lord North declaimed very much against the conduct of the city, as tending to destroy the very being of parliament; that it was essential to proceed into this affair with all possible dispatch; that the sickness of the lord mayor would not, he hoped, be used for longer delays; but that on Monday next, the defence should absolutely be gone into. Mr. Dowdeswell got up to speak, but the House was so noisy he could not be heard; upon which, with some warmth, he moved to adjourn, and divided the House. But the ministry carried it against him 148 to 48. Mr. Oliver's attendance was then fixed for Monday. Mr. Welbore Ellis moved an Amendment to the Resolution, that Mr. Oliver should be heard by counsel," upon all such points as do not controvert the privileges of this House," which was agreed to. Debate in the Commons on Committing Brass Crosby, esq. Lord Mayor of London, and Mr. Alderman Oliver to the Tower.] March 25. The several orders of the day being read, for the attendance of Brass Crosby, esq. lord mayor of London, and Richard Oliver, esq. alderman of the city of London, in their places;* "About two o'clock, the lord mayor, attended by Mr. Alderman Oliver, went from the Mansion-house, to attend in their respective places in the House of Commons, pursuant to orders issued to them on Friday last. There was a prodigious concourse of people about the Mansion-house to see them come out, and the crowd continued to encrease the whole way to Westminster-hall. When the members of the very And the Lord Mayor attending accordingly in his place, acquainted the House, that he had received the Resolution of this House of Friday last, for allowing him liberty to be heard, by his counsel, upon all such points as do not controvert the privileges of this House; but that finding the counsel were, by that Resolution, restrained from speaking to many points material to his defence, and that the counsel he could depend upon, and whom he wished to employ, were on the circuit; he therefore would not give the House the trouble of hearing counsel on this occasion. Then the evidence, which, upon Monday last, was given to the House, by the deputy Serjeant at Arms attending this House, was read; and the minutes of what the lord mayor had offered to the House, in his defence, upon Tuesday last, were also read. And the original Charter, granted to the city of London, upon the 6th of March, in the first year of Edward 3, was produced, and read. And the House being informed, that a person attended at the door, with a book, containing the oaths taken by the magistrates of the city of London; he was called in; and the book being produced, the copy of the oath taken by an alderman of the city of London, and also the oath of the lord mayor, were read, And then the lord mayor was further heard. His lordship said, The House had now heard read the oaths he had taken as a magistrate of the city of London: he appealed to those oaths when he was here before; and he thought the House, now they had heard them read, would be satisfied that he could act no otherwise than he did, in doing right to every man who was brought before him: he gloried in having done that, and he was persuaded that every member of the House would be of the same opinion. But he must still further appeal, if it was necessary, that he had acted agreeably to the laws and constitution of his country, in protecting the liberties of the subject, which he saw most manifestly invaded. As he said before, he said then, that he appealed to the justice of the House. House of Commons had taken their seats, the House proceeded to the discussion of the tender and delicate matter before them. About half past ten o'clock, his lordship finding his strength exhausted, and being unable to bear the pain and fatigue any longer, begged permission to retire; which being granted, be returned to the city, attended as before by a vast concourse of people, who took the horses from the coach, and drew it all the way to the Man-essential to the very being of this House, sion-house, testifying their approbation of his as without them the House could neither Fordship's conduct by the loudest acclamations act in its judicial, legislative, or inquisiand repeated shouts of applause," Gentle torial capacity; that they were a check to man's Magazine. Mr. Welbere Ellis then began. He observed, that the privileges in question were the power of the other branches of the legislature; that the cause of liberty was the cause of this House; if the powers of this House were weakened, liberty would be so too. As this power was necessary, so it was always acknowledged by the courts below, who always confirmed or did not dispute this power; that the practice of parliament was invariably the same; the ground of doubt was the charter of London, which gave or could give no power not inherent in the crown, and that the crown had no power over the privileges of this House; that the general order concerning the printers not printing the debates of the House was not a new thing; that it had been begun in 1641, and at different times renewed to this House. He then moved, "That the discharging out of the custody of one of the messengers of this House, J. Miller, (for whom the newspaper, entitled, The London Evening Post, from Thursday, ⚫ March 7, to Saturday, March 9, 1771, purports to be printed, and of which Paper 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 the House upon Thursday the 14th instant, 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 messenger) is a breach of the privilege of this House." their representatives; had he been in the lord mayor's situation, he would have done the same; that though this might be within the prerogative privileges, yet it was against the statute privileges of the House; whenever the former were extended at the expence of the people, he hoped the people would tear them from the House. He observed, that the King claimed also more prerogative to himself, as did also the House of Lords, witness their late illegal commitment and fine on Woodfall the printer; that all those prerogatives, joined to those claimed by the Commons, would leave the people scarcely the shadow of liberty. It was the opinion of chief justice Holt, that the parliament at large could not create privileges against law, much less can the House of Commons. When the Commons used their privileges against the crown, the people joined with the parliament in supporting them, and at that time they had the force of laws; the same in their disputes with the House of Lords; but when used against the people, the people discontented would be alarmed for their liberty," and by opposing end them." He apprehended there was a settled intention in government to root out the people's liberties; it had begun in modelling the House, and now extended to the liberty of the press, and shutting up courts of justice. There was a power greater than that of the King, which had of late controverted all administration, that of the princess of Wales, into whose influence over our councils the House ought to make enquiry. Sir G. Savile opposed this motion, as The ministry opposed the previous the House had already gone too far, and question, observing, that the necessity of what they had done tended to overturn a power to send for persons, papers, and the just power of the House. That the records, constituted the essence of the House of Commons might best be trusted House of Commons; that their privileges with such a great power, but if the House were the privileges of the people, and to was not the true representatives of the lessen them would ruin their liberty; that people, by so much the worse was any so long ago as 1641, the House had made power in them. By denying counsel, or resolutions in respect of publishing their granting a meeting of counsel, the pro-proceedings or debates, which had been ceeding had been unjust and vitiated ab confirmed in after times at different peinitio: that in this state he could not de-riods; that as to counsel being heard, it cide on the question now before the House, would have been a new supposition in the and should therefore move the previous House, which was so jealous of their pri question, to give time to the House to re-vileges, as never to allow any discussion of vise their proceedings. He hoped, that them any where but in the House. whilst they were thus employed in underpinning or propping up the powers of the House, it would not tumble about their ears. Alderman Townsend observed, that this question was between the people and The House being informed of a tumultuous crowd, in Palace-yard, and in the passages leading to the House, who interrupted members in their coming into the House, the high constable of the city of Westminster was called in, and examined as to the said tumultuous crowd; and he acquainted the House, that he had done every thing in his power to disperse them, with the assistance of a great number of the constables of Westminster; but that all his endeavours had been in vain. The House was moved, that the entry in the Journal of the House, of the 27th of February 1699, of the proceedings of the House, in relation to the information given to the House, of a crowd of people being got together, in a tumultuous and riotous manner, in the Palace-yard, Westminster-hall, and the passages to this House, might be read. And the same being read accordingly; and the House being informed, that several of the justices of the peace of Middlesex and West minster attended, they were called in; and, at the bar, Mr. Speaker, by order of the House, acquainted them, that the House had received information of the said tumultuous crowd; and that the House did expect that they should, together with the other magistrates now sitting at the Guildhall of the city of Westminster, forthwith do every thing in their power to disperse that riotous crowd; and that they should, as soon as they were able, return, and inform the House what they had done in this matter. And then they withdrew. And, after some time, the House being informed, that the said justices were again attending; they were called in; and, at the bar, acquainted the House, that they had, in obedience to the orders of the House, in a great measure dispersed the crowd, and cleared the passages for the members coming into the House; but that there was still a great crowd in the Court of Requests; and Mr. Speaker directed them still to attend, and to continue and use their endeavours to keep every thing quiet. And then they again withdrew. The Lord Mayor then acquainting the House, that he found himself extremely ill; and therefore hoped that the House would dispense with his further attendance at present; but hoped the matter might go on in his absence; and that he should Bubmit himself to every thing the House should do; he, with leave of the House, withdrew. Then the said previous question being put, That the first proposed question be now put; the House divided. The Noes went forth. YEAS NOES (Mr. Onslow Mr. Charles Fox } So it was resolved in the affirmative. Then the main question being put; Resolved, 1. That the discharging out of the custody of one of the messengers of this House J. Miller (for whom the newspaper, intituled, "The London Evening Post, from Thursday, March 7, to Saturday, March 9, 1771," purports to be printed, and of which paper 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 the 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 messenger) is a breach of the privilege of this House. 2. That the signing a warrant against the said messenger, for having executed the said warrant of the Speaker, is a breach of the privilege of this House. 3. That the holding the said messenger to bail, for having executed the said warrant of the Speaker, is a breach of the privilege of this House. Mr. Wallace then proposed to proceed against Mr. Alderman Oliver. Colonel Barré observed, that it was then near one in the morning; that no court of judicature in the world would proceed on a new trial at this hour: he therefore moved to adjourn. The House divided. The Noes went forth. Tellers. NOES {Mr. Jolliffe So it passed in the negative. } 97 214 Mr. Alderman Oliver, according to order, then attending in his place; and it being proposed to him, by Mr. Speaker, that the deputy Serjeant at Arms should be again examined, or that the evidence given to this House by the said deputy serjeant, upon Monday last, should be again read; He acquainted the House, that he did not desire the said evidence to be read again, or any witness to be called; and that he should not say any thing in his defence. He declared that he owned and gloried in the fact laid to his charge; that he knew, that, whatever punishment was intended for him, nothing he could say would avert it; that as for himself, he was perfectly unconcerned; and, as he expected little from their justice, he defied their power. Upon which, Mr. Welbore Ellis rose and said :* Sir; at a time when we are told by every pretender to patriotism, that nothing but parliamentary independency can possibly maintain the liberties of the people; it is with astonishment I see two magisstrates of the first city in the British empire, endeavouring to destroy the very existence of parliament, and even triumphing, though members of this House, in having violated those privileges, which are essentially necessary to the maintenance of our just weight in the constitution. Sir, one of the most favourite principles of the present opposition is, that all authority is originally derived from the people, and that in exigencies of peculiar necessity, where the law has provided no remedy for unforeseen criminalities, that then the power of the people should interpose, and the safety of the state even justify occasional infractions upon the established ordinances of the kingdom. The opposition, however, while it reasons in this manner, while it contends for this all-ruling supremacy in the people, never once reflects, that it is actually enforcing the propriety of parliamentary privilege. This House, Sir, in its legislative capacity, constitutes the only people of England which the law acknowledges: on the expiration of our term indeed, or our dissolution by the royal proclamation, our power reverts to the hands of our constituents, and the moment they elect new representatives, these representatives, and not the constituents, again become the legal body of the people. To imagine any other people, either in a judicial, or an argumentative sense, is to lay the political axe immediately at the root of our constitution; it is to substitute anarchy in the room of order, and to drag down that very de From the London Magazine. struction upon our heads, from which our modern reformers tell us their only solici tude is to preserve us. As we are therefore the people of England, Sir, nothing is more absurd than to say we are trampling upon the rights of the nation, when we are merely supporting our own constitutional claims, and exercising those powers, which have been immemorially allowed us for the most salutary purposes. Gentlemen tell us, that the privileges of parliament are manifestly repugnant to the spirit, nay, to the letter of Magna Charta-manifestly repugnant to many positive statutes, which declare, that the subject shall not be deprived of his freedom, but by the immediate law of the land. Now, the law of the land, according to these notable casuists, consists in an act passed by the joint concurrence of the three estates in parliament, and not in the private resolution of any one; to set up the private resolution of any one, they plausibly enough argue, above the joint act of the three, is to commit a murder upon common sense, and to overthrow every idea of rational government. It is not a little unfortunate however for the opposition, that the law of the land, which is thus pleaded against parlia mentary privilege, actually admits the exercise of privilege in the most unbounded latitude. It expresses, for instance, in the 9th clause of the Bill of Rights That the proceedings of parliament ought not to be impeached or questioned, in any court or place out of parliament." How, then, have the city magistrates dared to say, that their paltry corporation charters are to be put in competition with the dignity of parliament? How dare they set their inconsiderable claims above the whole body of the British people? Or how dare they imagine, that a Guildhall justice is to determine upon the privileges of this House, when neither the Lords, nor the crown, would pretend to so dangerous liberty? Sir, during the debates on the Middlesex election, when patriotism called upon us to know, whether the resolutions of this House should be considered as superior to the law of the land, it was repeatedly ob served, that if the law of the land recognized, if it confirmed our privileges, that they could by no means be illegal. By the law of the land it was observed, Sir, that a man refusing to pay a just debt was liable to be arrested-whereas by the privilege of parliament, the person of a mem 1 ber was rendered sacred-he could not be to preserve the purity of election, that arrested for debt, and the officer arresting preservation must become utterly imposhim was subject to the displeasure of this sible, whenever the salutary rod of corHouse. The very meaning of the term privi-rection is taken out of our hands. lege implies a particular right of dispensing with particular laws-and privilege was originally claimed, as well as originally granted, for the public good of the kingdom-to serve as a check upon the power of the peers, and the prerogative of the crown, and to make the scale of the people as important in the constitution. Will the friends of the people therefore contend, that the House of Commons should be made inferior in their legislative capacity, either to the peers or the crown? Shall they, while equal to both in the formation of laws, be rendered less respectable in the circumstance of privilege? God forbid. The consequences are big with horror; they shake the temple of freedom to its very centre, and threaten instant annihilation to every thing, which can possibly be dear to the independency of the British empire. Sir, let us for a moment launch out into the regions of political supposition, and grant, with our popular reformers, that parliamentary privilege is a monster which calls for immediate extermination, and cannot exist without manifest danger to the community: still it is necessary to enquire, whether the extermination is not more destructive than beneficial, and more likely to increase than diminish the catalogue of grievances. If privilege is removed, every individual in the kingdom will undoubtedly be indulged with an opportunity of abusing parliament; of misrepresenting its proceedings, and inculcating a general contempt for all legal authority. Such will be the benefits resulting from the total abolition of privilege; but if this abolition is suffered to take place, and if the written, the positive law of the land only, is to be restrictive upon the person of the subject-if the Commons are allowed no inherent power of imprisoning, where their orders are disregarded, what returning officer will attend them, who may have misbehaved on a general election? Every such officer will send up his patron, or his friend, to parliament, when there is no legal court in being to punish his delinquency; and this House, from a representative of the people, will speedily degenerate into the tyrants, or the creatures of sheriffs, bailiffs, and portreeves: universal anarchy must succeed to tolerable order, and if we now find it difficult In reality, Sir, nothing but the excessive folly of our modern patriots could desire the abolition of our privileges; for let us even suppose the present representatives of the people to be every thing which they are pictured by the licentiousness of faction, still does it follow, that their turpitude is to lessen the dignity of their successors down the whole lapse of time, and that a power, confessedly salutary in the custody of honest men, is to be annihilated, because it may be occasionally abused by men of profligate characters? If the electors of Great Britain can depend upon their own virtues, they may at all times depend upon that of their members; but, if the fountain of elective legislation is once rendered impure, the streams must naturally be corrupted; venal constituents must of course produce venal representatives, and such, whether privilege is, or is not, taken away, will always have the power of overturning our happy constitution. Sir, the farther I enter upon the subject of parliamentary privilege, the more I am astonished at the infatuation of our political reformers. Their principal exclamation is for the punishment of bad ministers, for the reformation of abuses, and for an enquiry into the conduct of our judges upon some late judicial determinations; yet if an Englishman is bound by nothing but the express, the written law of the land, how are the Commons ever to impeach a minister, or to answer any other end of their institution? Take away their power of imprisoning persons, or demanding papers, and you render them totally useless; you give every individual of the whole community a right of despising their authority; for who, give me leave to ask, will attend their orders if unobliged to attend? Will the monopolizer shew a voluntary obedience to their commands against his own interest? Will the proprietor of common take a journey of perhaps a hundred miles at his own expence, to counteract his own inclinations, when he is left at liberty to decline it? And above all, will the venal judge, or the arbitrary minister dread the indignation of this House, when none are bound to give testimony of their guilt, and when the evidences of this guilt may be particularly desirous to conceal it? |