meddle with a matter that relates to the government, I do not think my lords the bishops had any power to do more than any others. When the house of lords and commons are in being, it is a proper way of applying to the king: there is all that openness in the world for those that are members of parliament, to make what addresses they please to the government, for the rectifying, altering, regulating, and making of what law they please; but if every private man shall come and interpose his advice, I think there can never be an end of advising the government. I think there was an instance of this in king James' time, when by a solemn resolution it was declared to be a high misdemeanour, and next to treason, to petition the king to put the penal laws in execution. Just. Powell. Brother, I think you do mistake a little. Just. Allybone. Brother, I dare rely upon it that I am right: it was so declared by all the judges. Sol. Gen. The Puritans presented a petition to that purpose, and in it they said, if it would not be granted, they would come with a great number. Just. Powell. Aye, there it is. Just. Allybone. I tell you, Mr. Solicitor, the resolution of the judges is, That such a petition is next door to treason, a very great misdemeanour. Just. Powell. They accompanying it with threats of the people's being discontented. Just. Allybone. As I remember, it is in the second part of the folio 35, or 37, where the resolution of the judges is, That to frame a petition to the king, to put the penal laws in execution, is next to treason; for, say they, no man ought to intermeddle with matters of government without leave of the government. Serj. Pemberton. That was a petition against the penal laws. Mr. Pollexfen. They there threatened, unless their request were granted, several thousands of the king's subjects would be discontented. Just. Powell. That is the reason of that judgment, I affirm it. Just. Allybone. But then I'll tell you, brother, again, what is said in that case that you hinted at, and put Mr. Solicitor in mind of; for any man to raise a report that the king will or will not permit a toleration, if either of these be disagreeable to the people, whether he may or may not, it is against law; for we are not to measure things from any truth they have in themselves, but from that aspect they have upon the government; for there may be every tittle of a libel true, and yet it may be a libel still: so that I put no stress upon that objection, that the matter of it is not false; and for sedition, it is that which every libel carries in itself; and as every trespass implies vi and armis, so every libel against the government carries in it sedition, and all the other epithets that are in the information. This is my opinion as to the law in general. I will not debate the prerogatives of the king, nor the privileges of the subject; but as this fact is, I think these venerable bishops did meddle with that which did not belong to them: they took upon them in a petitionary, to contradict the actual exercise of the government, which I think no particular persons, or singular body, may do. (S.T. xii. 183-433.) X THE CASE OF JOHN TUTCHIN [John Tutchin was tried for writing and publishing "false, malicious and seditious libels." The passages on which the indictment was based complained of mismanagement and peculation in the navy, and accused certain government officials of being bribed by France. The jury found him guilty of "composing and publishing," but not of "writing" the alleged libel. On appeal in arrest of judgment the verdict was quashed on technical grounds, but "it was never afterwards thought proper to try him again." Chief Justice Holt's charge to the jury has a historic and constitutional interest as showing the interpretation of the law of libel by a judge whose defence of popular liberties in Ashby v. White proved his courage and independence. See Broom, C.L. 517; Odgers, L. and S. 410422; Stephen, H.C.L. ii. 298-396; Hallam, C.H. iii. 166; S.T. xiv. 1095– 1199.] Gentlemen of the jury, this is an information that is preferred by the queen's attorney general against Mr. Tutchin for writing and composing, and publishing, or causing to be writ, composed or published, several libels against the queen and her government . . . So that now you have heard this evidence, you are to consider whether you are satisfied that Mr. Tutchin is guilty of writing, composing and publishing these libels. They say they are innocent papers, and no libels, and they say nothing is a libel but what reflects upon some particular person. But this is a very strange doctrine, to say, it is not a libel reflecting on the government, endeavouring to possess the people that the government is maladministered by corrupt persons, that are employed in such or such stations either in the navy or army. To say that corrupt officers are appointed to administer affairs, is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it, and nothing can be worse to any government, than to endeavour to procure animosities, as to the management of it: this has always been looked upon as a crime, and no government can be safe without it be punished. Now you are to consider, whether these words I have read to you, do not tend to beget an ill opinion of the administration of the government? To tell us, that those that are employed know nothing of the matter, and those that do know are not employed. Men are not adapted to offices, but offices to men, out of a particular regard to their interest, and not to their fitness for the places this is the purport of these papers. . . . Gentlemen, I must leave it to you; if you are satisfied that he is guilty of composing and publishing these papers at London, you are to find him guilty. (From Holt's, C.J., charge to the jury. S.T. xiv. 1126.) : ΧΙ ASHBY v. WHITE AND OTHERS [The importance of this historic case, with which is also concerned The Case of the Aylesbury Men, justifies the length of the extracts. Matthew Ashby brought an action against William White, Mayor of Aylesbury, and others, for refusing his vote at an election of burgesses to Parliament, and obtained a verdict with costs and £5 damages. On a motion in the Queen's Bench in arrest of judgment before Lord Chief Justice Holt and Justices Powell, Powys, and Gould, judgment was given for the defendant on the ground that an action did not lie against the returning officers, Holt, C.J., dissenting. The case was brought on writ of error before the House of Lords, and on January 14, 1703, the judgment of the Queen's Bench was reversed on the grounds set forth in Holt's dissenting judgment in the court below (Excerpt I.). The House of Commons at once took the challenge up, and after debating it from January 17 to 25, adopted certain resolutions to protect their interpretation of their privileges (see Excerpt II., p. 271). The House of Lords also debated this question and passed counter-resolutions, and conferences between the two chambers failed to effect a reconciliation. When five other Aylesbury men, supported by the decision of the House of Lords, brought actions similar to that of Ashby's, they were promptly committed to Newgate by the House of Commons for a breach of privilege. A motion to obtain their discharge on a writ of habeas corpus was argued in the Queen's Bench before the same four judges who had already given a judgment in Ashby v. White, and with the same result. By three to one (Holt, C.J., again dissenting) the court refused to order their discharge (see Excerpt IV.). Paty, one of the five Aylesbury men, petitioned the Queen for a writ of error to bring his case before the House of Lords, as Ashby had done; the Commons petitioned the Queen not to grant the writ, whereupon the Crown referred the question to the judges as to whether such writs were "of right" or "of grace." Ten judges answered that such writs were "of right" (ex debito vel merito justitiae), two that they were of grace" (ex gratia). The Lords also drew up a representation to the Crown, and Anne solved the difficulty by proroguing Parliament. This freed the Aylesbury men from the restrictions of the privilege of the House of Commons, and they finally obtained verdicts against the returning officers. On the whole matter see S.T. xiv. 695-888; Hallam, C.H. iii. 274; Anson, L.C. i. 170; Broom, C.L. 841-874; May, P.P. 57–142. The extracts are: (1) from Holt's judgment in the Queen's Bench; (2) the resolutions of the House of Commons; (3) the counter-resolutions of the House of Lords; (4) the judgments of the judges in the argument on the writ of Habeas Corpus for "the Aylesbury men"; (5) the certificates of the judges to the question submitted by the Crown; (6) from the representation of the Lords to the Crown with the Queen's answer.] I The Case is truly stated, and the only question is, whether or not, if a Burgess of a Borough that has an undoubted right to give his vote for the chusing a Burgess of Parliament for that Borough, is refused giving his vote, has any remedy in the King's Courts for this Wrong against the Wrong-doer? All my Brothers agree that he has no Remedy; but I differ from them, for I think the Action well maintainable, that the Plaintiff had a Right to vote, and that in consequence thereof the Law gives him a Remedy, if he is obstructed; and this Action is the proper Remedy. By the Common Laws of England, every Commoner hath a Right not to be subjected to Laws, made without their Consent; and because it cannot be given by every individual Man in Person by Reason of Number and Confusion, therefore that Power is lodged in the Representatives, elected by them for that purpose, who are either Knights, Citizens or Burgesses; and the Grievance here is, that the Party not being allowed his Vote, is not represented. The Election of Knights of ... Shires is by Freeholders; and a Freeholder has a Right to vote by Reason of his Freehold, and it is a real Right. In Boroughs. . . they have a Right of voting Ratione Burgagii and Ratione Tenurae; and this like the Case of a Freeholder before mentioned is a real Right, annexed to the Tenure in Burgage. . . . . This is a noble Franchise and Right, which entitles the subject in a Share of the Government and Legislature. And here the Plaintiff having this Right, it is apparent that the Officer did exclude him from the enjoyment of it, wherein none will say he has done well, but Wrong to the Plaintiff; and it is not at all material whether the Candidate, that he would have voted so, were chosen, or likely to be so, for the Plaintiff's Right is the same, and being hindered of that, he has Injury done him, for which he ought to have Remedy. It is a vain Thing to imagine, there should be Right without a Remedy; for Want of Right and Want of Remedy are Convertibles: If a Statute gives a Right, the Common Law will give Remedy to maintain it; and wherever there is Injury, it imposts a Damage. And there can be no Petition in this Case to the Parliament, nor can they judge of this Injury, or give Damages to the Plaintiff. And although this Matter relates to the Parliament, yet it is an injury precedaneous to the Parliament; and where Parliamentary Matters come before us, as incident to a Cause of Action concerning the Property of the Subject, which we in Duty must determine, though the Matter be Parliamentary, we must not be deterred, but are bound by our Oaths to determine it. The Law consists not in particular Instances, but in the Reason that rules them; and if where a Man is injured in one Sort of Right, he has a good Action, why shall he not have it in another? And though the House of Commons have Right to decide Elections, yet they cannot judge of the Charter originally, but secondarily in the Determination of the Election; and therefore where an Election does not come in Debate, as it doth not in this Case, they have nothing to do: and we are to exert and vindicate the Queen's Jurisdiction, and not to be frighted because it may come in Question in Parliament; and I know nothing to hinder us from judging Matters depending on Charter or Prescription. He concluded for the Plaintiff. (Holt's Judgment. Holt's Reports (ed. 1737), pp. 525 et seq.) |