DOCTRINE OF SUMMARY COMMITMENT FOR CONSTRUCTIVE CONTEMPTS OF PARLIAMENT, AND of Courts of Justice. No. VI. IN 1819, (December 10th,) Mr. Courtenay called for the judgment of the House of Commons on a pamphlet, entitled, 'A Trifling Mistake, in Thomas Lord Erskine's recent preface. Shortly noticed, and respectfully corrected, in a Letter to his Lordship, by the Author of the Defence of the People. London: Printed by Robert Stodart, 81, Strand.' As a specimen of its objectionable contents the following passage was read: What prevents the people from walking down to the House of Commons and pulling out the members by the ears, locking up their doors, and flinging the key into the Thames? Is it any majesty which lodges in the members of that assembly? Do we love them? Not at all; we have an instinctive horror and disgust at the very name of a Boroughmonger. Do we respect them? Not in the least. Do we regard them as endowed with any superior qualities? On the contrary, individually, there is scarcely a poorer creature than your mere Member of Parliament, though in his corporate capacity, the earth furnishes not so absolute a bully. Their true practical protectors then, the real efficient anti-reformers are to be found at the Horse Guards, and at Knight's-bridge Barracks. As long as the House of Commons'-majorites are backed by the regimental musterrolls, so long may those who have got the tax-power, keep it, and hang those who resist.' What is substantially asserted in the above passage is plainly, that the House were protected, not by the love and confidence of the people, but by their fear; that they had rendered themselves objects of detestation; but that, as the author said, in another part of his pamphlet, 'the time, the means, the occasion (of actual resistance) must, of course, make part of the prudential question which every man must determine for himself, and concerning which, I do not wish to be his prompter;' using therein nearly the celebrated language which fell from Mr. Fox on the 23rd November, 1795. 'I have a right to hope and expect,' said Mr. Fox, 'that these (treason and sedition) bills, which positively repeal the bill of right, and cut up the whole of the constitution by the roots, by changing our limited monarchy into an absolute despotism, will not be enacted by Parliament, against the declared sense of a great majority of people. If, however, Ministers, so resolute in their spirit of destruction, are determined, by means of the corrupt influence they possess in the two Houses of Parliament, to pass the bills in violent opposition to the declared sense of a great majority of the nation, and they should be 1 put in force with all their rigorous provisions, if my opinion is asked by the people, as to their obedience, I shall tell them, that it is no longer a question of moral obligation and duty, but of prudence. It will, indeed, be a case of extremity alone, that can justify resistance, and the only question will be, whether that resistance is prudent.' Mr. Burke, too, saw no other way for the preservation of a decent attention to the public interest in the representatives, but the interposition of the body of the people itself, whenever it shall appear, by some flagrant and notorious act, by some capital innovation, that their representatives are going to overleap the fences of the law, and to introduce an arbitrary power. About the same time that Mr. Burke promulgated these sentiments, he thus described the feeling which prevailed respecting the House of Commons among their representatives: 'Sir, that there should be found gentlemen, who would annihilate the people, and acknowledge no other voice but that of this House, is to me not at all surprising; because the conduct of the most violent sticklers for this doctrine has not deserved much applause or favour from them. But that they should have renounced reason and common sense, so far as to maintain that the majority of this House is the only organ by which their sentiments can be expressed, is to me truly surprising. For where, in the name of wonder, should the House acquire the necessary knowledge or intelligence? Is it by turning over these musty volumes, or by rummaging these gaudy boxes which lie on your table? No, Sir, they contain none of these mysteries. How, then, are they to be explored? Is there any virtue or inspiration in these benches or cushions, by which they are communicated? Or does the echo of these walls whisper the secret in your ears? No; but the echo of every other wall, the murmur of every stream, the shouts, aye, and the hoots and hisses of every street in the nation, ring it in your ears, and deafen you with their din. "Deafen you, did I say? Alas! you were deaf before, or rather dead, otherwise you would have heard; for their voice is loud enough to awaken almost the dead.'* The majority of the House of Commons, in 1770 and 1795, dissented as much from the sentiments of Mr. Burke and Mr. Fox, as they did from those of the Author of 'A Trifling Mistake,' in 1819. In the two former cases, the majorities had as much reason to dread the rage of periodical and pamphlet criticism, and much more reason to apprehend the influence of such eminent men in fanning the flame of popular discontent; it was also more competent to them, however inexcusable an infringement it would have been on the freedom of debate, to animadvert on what they might judge a criminal abuse of the license permitted to a member of their own house, than to usurp the province of a jury, in the case of one who was * Burke's Speeches, vol. i. p. 70. not a member, nor had obstructed any of their proceedings; yet no attempt was made to punish Burke and Fox, and the avowal of their sentiments exposed them merely to the usual misrepresentations of party hostility. Mr. Fox was accused (by Mr. Abbot, now Lord Colchester) of making a signal to the inquiring people of England, and bidding them unfurl the standard of rebellion,' but was neither reprimanded nor sent to the Tower; the Author of A Trifling Mistake' was accused of holding out ‘a direct recommendation to the people to use force against the House of Commons,' and was sent to Newgate. Supposing, for a moment, that Mr. Abbott and Mr. Courtenay, instead of violently perverting the meaning of the passages they reprehended, by excluding from their view the various conditions on which the offering of resistance was made to depend, had given a correct construction of their purport-granting that, by an incredible lapse into imbecility, the former had said, sans phrase, 'Unfurl the standard of rebellion! Compel the King to make me First Lord of the Treasury, Chancellor of the Exchequer, and Warden of the Cinque Ports;' and that the latter had said, as unequivocally, 'Use physical force against the House of Commons, the Horse Guards, and the Foot Guards! You are a thousand to one, what have you to fear?' Would there have been any thing in such folly to excite the slightest alarm in a sane mind? Let Members of the House of Commons ask themselves, whether it requires less than the power of a CROMWELL or a BUONAPARTE to pull them out by the ears; let them reflect on the long intervals at which such characters appear on the stage, and fix the world's gaze upon their motions; let them review the infinite combination of circumstances which called forth the latent ‘merit,' which conducted these men to their bad eminences,' the long series of acts of misgovernment, and the slow-maturing contrariety between existing laws, institutions, and national character; and they will be satisfied that, in whatever degree the clandestine calumnies of a press, under arbitrary restrictions, may have contributed to such convulsions, they never have been, and never can be, in any degree, brought on by the most unbridled licentiousness of one that is self-controlled. They will be impressed with a sober, rooted, practical conviction, that, if the opinions of orators and pamphleteers, however wild and pernicious, and however well sustained, are paradoxes confined to the individual who utters them, or to a few hundred followers, they fall as harmless in the middle of sixteen millions of people, as they would in a party of three or four.' * In the debate on Mr. Courtenay's motion, 'that Robert Stodart be summoned to attend the bar on Monday next,' the speeches of individual members did abundantly partake of their corporate spirit; and, on such occasions, it is extremely common to hear a knight, Lord John Russell's Essay on the Constitution, p. 294. Oriental Herald, Vol. 17. citizen, or burgess speak as if he had the whole House of Commons in his belly.' Mr. Courtenay said, 'Such doctrines as these must lead to all the scenes of horror, anarchy, and confusion, from the contemplation of which every good mind must shrink. The opinions of such a writer, his wild and mischievous feelings, if not curbed, must lead to infinite calamities; not only for those who valued the rash and wicked advice, but to all who wished well to their country. Such opinions went at once to the utter destruction of the constitution of the country. Might not any individual, whom the House may hereafter punish for following such doctrines, turn round and complain against their pouring down the vengeance of the law upon him, when they left unnoticed and unpunished the real author, whose precept led the follower into crime?' Here the public opinion, respecting the House of Commons, is supposed to depend, not on the conduct of the House, but on the opinions of one private and anonymous writer; and the prevalence of his opinions is supposed to depend on the circumstance of his being at large, or confined within the walls of Newgate. Again, the bare assertion of the indisputable proposition, that a course of insolent oppression on the part of Government, however sanctioned by legal formalities, will provoke resistance, is declared to lead inevitably to scenes of horror, anarchy, and confusion,' whether there be a general feeling of oppression or not. And, to crown all, it is said, that the House' could not, consistently, punish any individual who should hereafter 'follow the doctrines' inculcated in the pamphlet, that is, walk into the house, and 'pull the Members out by the ears,' if they did not first chastise 'the real author' of such an unheard-of proceeding,-him, in obedience to whose 'precept' the reformer had ventured on so hazardous a step! Sir Francis Burdett said, 'If this motion is agreed to, the House will appear in a very extraordinary light in the eyes of the country. A few days only have elapsed since we refused the exercise of our undoubted constitutional inquisitorial power, when called upon, for the benefit of them, on the part of the whole people of England. The same persons, who so thought proper to refuse the exercise of these functions to the complaining people who demanded them, will now, I have no doubt, consent to apply all the force of our power, at the call of the honourable and learned gentleman, to a case in which, of all others, we should be silent, and wherein alone we cannot act as an impartial party. I will, on all occasions, object to converting this house into a court of justice, a jurisdiction for which we are most unfit. It is contrary to every principle of justice and law, that men should be judges in their own cause, should pronounce the law just as it pleases them, and preclude the accused from all the means of defence which the law of the land allows him.' Lord John Russell 'thought that libels pronounced in the house, within their own doors, should be punished with severity; but this libel having been published out of doors, in common with many others of the same description, which had escaped uncensured, he could scarcely consider the incidental reading of a passage from it, by a Member, (Mr. Stuart Wortley,) as a sufficient ground to justify the proceeding now recommended.' An incitement to punish libels spoken in the house, which would be destructive of the freedom of debate, is not at all redeemed by a rejection of the motion on narrow and inadequate grounds, implying the speaker's dissent from those on which it ought to have been opposed. Lord Nugent 'wished to state in three words the reason why he should most cordially give his vote for the original motion; and so proceeded, amidst the cheering of his brethren, to give a very animated support to the prosecution and conviction of the yet unknown defendant. Mr. Wilberforce 'had always preferred, where it could be adopted, that course in which they avoided taking the [prosecution, verdict, judgment, and] execution of the law into their own hands, by calling on the Attorney-General to bring the criminal into a court of justice. For when they themselves proceeded against criminals, it might be imputed to them, that they united together offices which ought to continue distinct, and became executors as well as makers of the law, which, it was apprehended, had a tendency to tyranny; and, if that mode of proceeding were applicable to the present case, he should certainly give it the preference.' But if it should not be considered applicable, that is, if a verdict could not be expected from a jury, he had no objection to incur the imputation of uniting. incompatible offices, and of defying apprehensions, founded on human infirmities, from which they were by privilege exempt! 'He could almost pardon any thing more readily, than a cold, mean attempt to keep within the bounds of danger, and, at the same time, trifle with the security of the constitution, and the greatness and glory of the country which he loved; and whose greatness and glory, he hoped, would be transmitted, notwithstanding all the malice of its enemies, unimpaired to prosperity.' So that, if men would not go beyond the bounds prescribed for their conduct, and expose themselves to the danger of being lawfully convicted of offences, Mr. Wilberforce would concur in a proceeding, which would defeat their prudence, and punish them for guilt which they were unpardonable for not manifesting more plainly! If men will think themselves safe within those judicial safe-guards, which it is. the highest glory of the constitution to preserve inviolate, Mr. Wilberforce thinks it the privilege of our representatives to overleap the sacred fence, and bring in that arbitrary power, against whose approaches, whether direct or insidious, it is their obvious duty and noblest privilege to protect the country. When the consideration of this subject was resumed, December |