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the particular species of power intended to be described, as that which the gentlemen in question have thought, proper to apply to it. For it is evidently derived from the substantive, inquisition; and it is very well known that the Inquisition fixes its own power, and suffers no other' tribunal to define its nature, to deny its legality, to question its utility, or to limit its extent. It were needless to point out the analogy.
One powerful objection to judicial proceedings before the House of Commons, is derived from its want of authority to administer an oath-a defect which, it is to be presumed, would never have been suffered to exist, had it been the intention of our ancestors to vest it with judicial powers. On this account it was that we witnessed, with regret, the rejection of Mr. Yorke's proposal for passing an act to appoint a special commission for trying the merits of the case: that commission would have been authorised, of course, to administer oaths. Now, will any unprejudiced man pretend to say, that, if the House of Commons could have examined witnesses upon oath, we should have seen any of that shameful prevarication, any of those disgraceful breaches of veracity, which have been remarked during this inquiry? Again, we will ask, if such a commission as Mr. Yorke suggested had been appointed, should we have witnessed those gross inconsistencies, those frequent deviations from the rules of evidence which the House chose to adopt on the present occasion, that marked the whole progress of the examinations at the bar? In an early part of the inquiry, the House, while they asserted their total exemption from all those rules of evidence which prevail in our courts of law (and which, it must never be forgotten, are the surest safeguards of innocence, though occasionally tending to favour the escape of guilt), resolved, in the case before them, to adopt and enforce them. When we recollect at what period, and under what circumstances of the examination, this resolution was entered into, and in how many, and in what instances, it was palpably and grossly violated, without an attempt to call the examining party to order, we find another strong ground of objection to judicial investigations before the House of Commons.
We heard it objected to Mr. Yorke's proposal, that the public would not be satisfied with such a commission; and that nothing less than an examination at the bar of the House of Commons would satisfy them, What opportunity those who stated this
curious objection enjoyed, which we do not enjoy ourselves, to ascertain the opinion of the public upon this point, we are totally at a loss to understand. We believe, on the contrary, that all the rational part of the public would have been much better satisfied with such a proceeding. With an examination before a select committee, indeed, we are confident nobody would have been satisfied. But who ever expressed dissatisfaction at a proceeding in any of our courts, as not being sufficiently public! And surely the inquiry, before the commission in question, would have been equally public: and it would have been infinitely more solemn and authoritative, than when carried on by a popular assembly.
A further objection which we entertain to the judicial power assumed and exercised by the Commons, is derived from the marked prevalence of that party-spirit which universally distinguishes almost every proceeding of a popular assembly; and which cannot prevail in a court of justice, without a manifest violation of every principle on which justice ought to be adıninistered in a well-regulated state. The question - how far this spirit has been displayed in the conduct of the present inquiry? --- it would not be safe for us to discuss.
A great deal has been lately said about the freedom of the press. We are certainly amongst the most strenuous advocates for the sirict preservation of that freedom, from a knowledge of the blessings which it may confer, and of the evils which it may avert; and therefore it is that we are decided enemies to its licentiousness; because its licentiousness has a necessary tendency to destroy its freedom. An essential part of this freedom consists in the power of every member of the community to discuss, fairly but freely, the public conduct of public men. Now, it will not be denied, that every member of the House of Commons, individually, is a public man; and, of course, that the whole House, in the aggregate, are public men. It will thence necessarily follow, that the established liberty of the British press confers a right on every Briton to animadvert, with freedom, on the conduct of any individual member, or on the proceedings of the whole House. But here, unfortunately, practice and theory are at variance; and the power, assumed by the House, of being judge as well as party, in every thing affecting themselves, operates as effectually as the most restrictive laws, in preventing the exercise of that freedom which constitutes at once the birthright and the boast of English. Bien! It is the existence, de facto, if not de jure, of this
power, which prevents us from pointing out the particular circumstances which indicated the prevalence of a party-spirit during the inquiry into the conduct of the commander-in-chief. To prevent, however, all misconception of our meaning, it is necesary for us to declare that, in the observations which we have made, we do not at all allude to the conduct of the member who boldly stood forward as the prosecutor. It is but an act of common justice to him, to observe, that, after every inquiry which we have instituted, we are enabled to state, that he is a gentleman of independent fortune, and of hitherto unimpeached character, and that he obtained his seat in parliament in the most honourable way--by the sponfaneous offers of his constituents.
One of the strange inconsistencies, or rather anomalies, in the ad. ministration of justice, arising out of the extraordinary powers claimed by the House of Commons, is the curious mode of examination which the members adopt. Whenever they exercise a judicial power, it is evident they sit in a judicial capacity, and every member is in fact a judge : yet have we seen these judges not only examining each other as evidence, but examiðing and cross-examining the prosecutor!! This mode of proceeding is surely equally absurd, whether the House choose to consider themselves as judges or as juTors; whether the object of their inquiry be to decide, like a grand jury, whether the defendant should be put on his trial; or to try him, dernier resort, and to punish him, according to their pleasure, by address to the King to dismiss him from his office, by declaring hina incapable of holding any office of trust in the state, or otherwise.
The very extensive powers thus exercised, and the exemption from being bound by the ordinary rules and maxims of our courts of law thus claimed, can be supposed to arise solely from a notion, that the ends of public justice will be better promoted thereby, than by the usual modes of proceeding. If tried, however, by this test, the most ingenious advocates for parliamentary privilege will, it is apprehended, find themselves woefully deficient in arguments to support their pretensions. In the first place, nobody can maintain this position without denying the efficacy of our law of evidence (which ltas been the theme of so much applause to many of the best-informed writers on the subject) to answer the purpose for which it was framed. If the advocates in question be not prepared to deny this, but
, on the contrary, be compelled to admit the efficacy of that law, on what plea can they defend the violation of it by the House of
Commons? In theory, we have a right to assume, it is indefensible; and it will then remain to prove its excellence by specific instances of practical utility and advantage. Within our own recollection, only two instances have occurred which can be referred to as precedents; the impeachment of Mr. Hastings, and that of Lord Melville. The former, after a protracted persecution, disgraceful to the country, terminated in a rejection of every charge preferred by the House of Commons. The latter, still more disgraceful, by the scandalous disregard of every principle of justice manifested by that House which preferred the impeachment; who condemned without evidence, and who punished without trial: as it originated exclusively in party-spirit, so it ended with still greater shame to the accusers. It is needless to enter into a detail of circumstances, when the prominent features of these cases are sufficient to demonstrate the validity of the point for which we contend. We have thus far argued chiefly on general principles, leaving their application to the particular subject to our readers.
But though we do not feel ourselves at liberty, as well for the reasons which have been alleged, as from the consideration that the case is still sub judice, to comment on the inquiry itself which gave birth to these animadversions, there are certain parts of it which it would be a breach of our duty to the public to pass over without notice. We have already pointed out, or rather alluded to, some of the inconsistencies which have marked the progress of the business. We shall now indicate another of a nature so striking, that it is astonishing to us that it should have escaped the observation of every member of the House. It will be recollected, that so much earnestness was displayed by one side of the House, in the examination of the prosecutor and of other persons, to ascertain whether any, and what, communication had taken place between the prosecutor and the witnesses, and between the different witnesses themselves, as to show that great importance was attached to the circumstance. It was not, therefore, without extreme surprise, that we heard the chancellor of the exchequer anticipate the nature of the defence, that we read an account, in the newspapers, of a conference which implied an immediate communication with the defendant; and which he held during the inquiry, not only with the defendant, but with tiro of the witnesses - Colonel Gordon and Mr. Adam. shall not here examine the validity of the objection to similar communications; but, merely, if they be valid, they must apply
generally, and that cannot be right on the one side which is wrong on the other. Indeed, when the House sits in a judicial capacity, the public can acknowledge in it neither ministers nor opposition nothing but judges or jurors. And for either a judge or a juryman to communicate pendente lite with any of the parties or witnesses, is, to say the least of it, a mode of proceeding that could not be tolerated in any court of justice recognised by the British Constitution. Nor can we conceive how the ends of justice or the public good, which, we shall ever contend, constitute the only defensible ground on which any parliamentary privilege or exemption can be maintained, can be promoted by such a deviation from the established usage of every other tribunal. We cite this instance, in order to place the incongruity of such a proceeding in a stronger point of view; for Mr. Perceval is not only a lawyer, but a man of the strictest integrity, and of the utmost purity of moral character: it is clear, therefore, that he would do nothing, in this business, which was not perfectly conformable with the law and custom of Parlianient, But it is with a view to the correction of a practice which we conceive to be highly prejudicial, in its tendency and effects, that we point out its glaring inconsistencies.
After the House had adopted the established law of evidence, they should, in no instance, have departed from it; yet, in their examination of witnesses, they put a variety of questions which no judge would have allowed to be put in any other court; or which, if asked, he would have protected the witness in his refusal to answer. What are termed leading questions, were put in numberless instances; and, in not a few, questions were asked calculated to produce answers which would criminate the witness. The cross-examination of one of the witnesses, Dowler, in the way in which it was conducted, ought not to have been tolerated any where. Its tendency was not so much to throw a light on the subject of inquiry, as to expose the young man's foibles and frailties (which he was laudably anxious to conceal) to his friends and the world, and to inflict an irreparable injury on his character. As to the contradiction which it was attempted to fix on him, with a view to invalidate the whole of his testimony, which was as full, clear, and explicit, with respect to the facts of the case, as any evidence which was ever delivered in a court of justice, to what did it amount but to a reluctant acNo. 128. Fol. 32. Feb. 1809.