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attorney-general to prosecute, but by an exertion of their own powers, and their own powers only.
Mr. Fox analysed the artiele complained of, and asked, if it contained any general libel on the government of the country, or any thing of a public nature, that pointed out prosecution in the court of King's Bench, as the fit and proper mode of prosecution ? The whole drift and tendency of it was to interfere with the proceedings of that House, touching the defence of Sir Elijah Impey. Why, then, would the House, in a case so immediately relating to its own concerns, appeal to the crown for aid? It was a curious inconsistency for the right honourable gentleman to argue upon the constitutional powers of the House to assert its own rights and maintain its own privileges, and then in a case of breach of privilege, and breach of privilege purely, to abandon those constitutional powers, and resort to the powers of the crown.
Mr. Fox contended that such an improper mode of prosecution led much farther than gentlemen possibly imagined, and might ultimately carry their privileges, the privileges of the House of Commons, to be decided upon by the House of Lords ! He commented on the eagerness to prosecute which had in this instance been eyinced, and said, the House had not shewn as much attention to its own members as they had done to Sir Elijah Impey. Were not their own committees equally sacred? And yet they well knew, that libel after libel had been published against the reports of their committees, and they had all seen a bill of charges for the insertion, in a public newspaper, of a series of libels on the proceedings of that House, and on the conduct and characters of several of its members. With regard to the article at present complained of, he should hardly think, that, had the argumenta, tive part of it merely appeared, any man would have thought of moving a prosecution. The improper phrases with which it was accompanied, and the indecent comments, upon the proceedings of that House undoubtedly he should not have used, nor ought they to be countenanced; but the argumentative part, that about the jurisdiction, he had no scruple to say coincided nearly with his own opinion. He urged the necessity, in a case so peculiarly their own, to keep it within their own jurisdiction; and reminded the House, that when once they committed the prosecution to the law courts, they had no farther command of it, and however inclined they might be to shew lenity, they would not have it their power. He asked if any person could tell him that a breach of the privileges of that House could be made a count in any information or indietment? He declared he believed that it could not, and contended against the absurdity of punishing the contempt of one court in another court, and of adopting that mode of prosecuting a complaint which was of all modes the least adapted to the nature of it. Mr. Fox also hinted at the late sentence against Lord George Gordon in the court of king's bench as being inordinately severe, and assigned that, among others, as a reason why the House should not be too eager to carry its contempts into Westminster-Hall to be punished, when it was generally admitted, that they had the power of punishing them in their own hands.
Mr. Fox was ably supported by Mr. Burke, and Mr. William Adam. Mr. Pitt said that no man could question the undoubted right of that House to assert their own privileges, and to punish those who should dare to infringe them; and contended that no mode could be adopted more constitutional, none more regular and proper, than that suggested in the motion before them. It was, indeed, true, that in times of confusion and notorious corruption, when the sources of justice were manifestly vitiated, and the crown exercised an unlawful authority over the courts of law, the House had found it expedient to take cognizance of those breaches of privilege, and to do themselves justice; but the more frequent, as well as the most advisable and constitutional method was that proposed by his right honourable friend. For his own part, he could declare that no man respected the privileges of that House more than he did, or would go farther to vindicate them; but he always thought that where a remedy might be obtained by common law, and in the ordinary course, it was neither prudent, wise, nor proper, to resort to extraordinary means: and such, with all the ingenuity that had been employed to perplex the question, he must consider that to be which was insisted on by gentlemen on the other side of the House. Cases had occurred in which the House had committed themselves upon the very same ground with that now so much insisted on, and in which they found themselves not a little embarrassed how to act. He, for one at least, was ready to confess that he did not know of any power with which that House was invested to compel the attendance of any of those parties, supposing they thought proper to refuse appearing. The libel was generally acknowledged to be very gross; nor was there any difference of sentiment, but in the most expedient mode of punishing those that were guilty of it. He could not, however, but remark, that it appeared a little extraordinary in the same persons who agreed in the condemnation of it, to adopt and sanctify the most obnoxious parts in their speeches in that House. On this occasion, they even went farther, and would fain deny all protection to the gentleman who appeared at their bar in a predicament, which, of all others, entitled him to it the most. That protection he would most undoubtedly feel disposed to extend towards him, as far as a sense of justice, and his duty as a member of parliament required. By those parts of a paragraph which affected him personally, he trusted that no gentleman would suppose he was at all influenced. He disregarded every thing of that kind so entirely, that he would not give it a moment's consideration. That was no reason, however, why he should not enforce what he conceived to be justice to the dignity and authority of the House, as well as to the individual who had exhibited the complaint.
le opinion, thalaht be fully unchus far he adona,
Mr. Fox claimed the indulgence of the House, whilst he explained himself upon some of the points which had been advanced by the chancellor of the exchequer. And first, he felt it his duty to repel the imputation which had been cast on him, and on his friends who had espoused his side of the question. He trusted that no man, who was at all acquainted with his sentiments or character, would be induced to believe that he was a friend to libels or libellers. What he had thrown out with respect to the article in question bore no such appearance, and he would repeat, that on a review of the numerous paragraphs of a personal and libellous nature, with which the press teemed every day, that would be found one of the least obnoxious, nor did he condemn it any farther than as it interfered with the proceedings of the House. With respect to the doctrine laid down, he thought it perfectly fair and rational, and the reasoning perfectly just. Thus far he adopted it, but he begged it might be fully understood he did not hold the opinion, that because members in that House might, not only with propriety and strict regard to their duty, hold certain language, and declare certain sentiments upon any topic under their consideration, the public prints were warranted in giving them to the world at large. The freedom of speech he considered as the first and most essential privilege of parliament, inseparable from its dignity and wellbeing, and he could easily imagine many cases in which it would be a gross libel and breach of privilege in a newspaper, to publish such words as he might find it necessary to make use of in his place. Still, he continued of the same mind as to the mode of proceeding which the House ought to adopt on the present occasion. He thought that as the article complained of could be punishable only in as much as it was a contempt of the House in its inquisitorial capacity, no other tribunal could take cognizance of it; and upon this he wished to have the opinion of the attorney-general, who could not, according to his notion, draw up either an information or indictment, so as to introduce the breach of privilege properly into one count. It also deserved the serious consideration of those with whom the motion originated, that the House would, by the procedure they proposed, be deprived of all power of proportioning the quantum of punishment to the nature of the offence; they would be left without redress, should the sentence inflicted be too light and inadequate, and they would be equally deprived of the power of pardon supposing that sentence too severe. For his own part, he was much averse to prosecutions for libels, chiefly because the sentence was frequently disproportioned to the crime, and this opinion was confirmed by the recent instance which had been alluded to. There did not appear to his mind a remedy which the House could apply, supposing, on conviction, the parties now complained of should be condemned to a similar punishment.
He begged to clear himself from having uttered any thing by way of insinuation against that learned body which had been spoken of; it was not in the way of insinuation,-a species of accusation not very congenial to his nature, - that he threw out what he had expressed about them; he urged it as matter of direct charge, nor would he receive the very flimsy apology which had been set up in their behalf; he would not pay so ill a compliment to the lawyers of this country as to suppose they were not as competent to pronounce upon the general principles of government as they were to speak to local points or municipal customs, But, in the case of Mr. Hastings particularly, such apology could not be listened to, because it was thought a defence founded upon legal objections in all its stages. He did not mean to condemn their attendance at present as any way culpable. He meant only to shew that their non-attendance on the former occasion ought to be looked upon as a dereliction of their duty. Probably the annals of the country could not furnish an instance of an important public prosecution being carried on without the concurrence and countenance of the great law officers of the crown; and he was sorry to witness a disposition in them to interfere only when their interference was likely to check, rather than assist, those who had the public justice of their country at heart.
Mr. Fox concluded by saying, that if the House should be of opinion to proceed to the punishment of the printers, he thought it much more advisable, and much more becoming their dignity, to order the attorney-general in their own name to commence the prosecutions, than to go up to the throne with an address to that effect. After what they had seen, at a period not very remote, what assurance could they have that the address would meet with due attention ? Considering how the addresses of that House had been treated on former occasions, how could they flatter themselves that the right honourable gentleman opposite to him would counsel his majesty to comply with their request.? This was a consideration that merited attention, not that he thought the minister would be at all inclined to withhold his consent on this occasion, or
to advise the crown to reject the address of the House of Commons in any thing which did not thwart his own ambition, or counteract any of his favourite measures.
The first motion being agreed to, the House divided on the se. cond, viz. “ That an humble address be presented to his majesty, humbly desiring his majesty that he will be graciously pleased to give directions to his attorney-general to prosecute the author or authors, the printer or printers, and the publisher or publishers, of the said libels, in order that they may be brought to condign pu. nishment for the same.” Tellers.
Tellers. Veas $ Mr. W.W. Grenville 100_Nors ŞMr. Adamlar AS (Mr. Rolle
J 109.-- NOES Sir J. Erskineš 37. So it was resolved in the affirmative.
MR. Fox's COMPLAINT OF A PAMPHLET RESPECTING THE
IMPEACHMENT AGAINST MR. HASTINGS.
February 14. M R . Fox rose, and begged leave to remind the House that
its attention had been very lately called to a complaint against a libel, and that, on that occasion, the right honourable gentleman who had stood forward to desire them to punish a breach of their privileges, had, in the course of his speech, observed, that it had been generally thought, that when a libel on individuals was issued and published, it was most wise to pass it over without notice, unless the case were of a very flagrant nature indeed; but, the right honourable gentleman had expressed great doubt whether a similar line of conduct was proper to be pursued when a libel was published against the House of Commons collectively, and against their honour and dignity as a branch of the legislature, To these opinions, Mr. Fox said, no man could more fully subscribe than himself; but there was a possibility for a case to arise, equally, if not more strong, than that of the third case stated by the right honourable gentleman; 'namely, that of Sir Elijah Impey, a man answering at their bar to accusations, and claiming the protection of the House. To that claim the House, undoubtedly, did right to pay attention, because to have denied it, would have been to all, appearance a refusal