[399] State Trials, xiv. 849.
[400] Id., viii. 30.
[401] This is very elaborately and dispassionately argued by Mr. Hargrave in his Juridical Arguments, above cited; also vol. ii. p. 183. "I understand it," he says, "to be clearly part of the law and custom of parliament that each house of parliament may inquire into and imprison for breaches of privilege." But this he thinks to be limited by law; and after allowing it clearly in cases of obstruction, arrest, assault, etc., on members, admits also that "the judicative power as to writing, speaking, or publishing, of gross reflections upon the whole parliament or upon either house, though perhaps originally questionable, seems now of too long a standing and of too much frequency in practice to be well counteracted." But after mentioning the opinions of the judges in Crosby's case, Mr. H. observes: "I am myself far from being convinced that commitment for contempts by a house of parliament, or by the highest court of judicature in Westminster Hall, either ought to be, or are thus wholly privileged from all examination and appeal."
[402] Mr. Justice Gould, in Crosby's case, as reported by Wilson, observes: "It is true this court did, in the instance alluded to by the counsel at the bar (Wilkes's case, 2 Wilson, 151), determine upon the privilege of parliament in the case of a libel; but then that privilege was promulged and known; it existed in records and law-books, and was allowed by parliament itself. But even in that case we now know that we were mistaken; for the House of Commons have since determined, that privilege does not extend to matters of libel." It appears, therefore, that Mr. Justice Gould thought a declaration of the House of Commons was better authority than a decision of the court of common pleas, as to a privilege which, as he says, existed in records and law-books.
[403] "I am far from subscribing to all the latitude of the doctrine of attachments for contempts of the king's courts of Westminster, especially the King's Bench, as it is sometimes stated, and it has been sometimes practised." Hargrave, ii. 213.
"The principle upon which attachments issue for libels on courts is of a more enlarged and important nature: it is to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the people." Wilmot's Opinions and Judgments, p. 270. Yet the king, who seems as much entitled to this blaze of glory as his judges, is driven to the verdict of a jury before the most libellous insult on him can be punished.
[404] Hargrave, ubi supra.
[405] This effect of continual new statutes is well pointed out in a speech ascribed to Sir William Wyndham in 1734: "The learned gentleman spoke (he says) of the prerogative of the Crown, and asked us if it had lately been extended beyond the bounds prescribed to it by law. Sir, I will not say that there have been lately any attempts to extend it beyond the bounds prescribed by law; but I will say that these bounds have been of late so vastly enlarged that there seems to be no great occasion for any such attempt. What are the many penal laws made within these forty years, but so many extensions of the prerogative of the Crown, and as many diminutions of the liberty of the subject? And whatever the necessity was that brought us into the enacting of such laws, it was a fatal necessity; it has greatly added to the power of the Crown, and particular care ought to be taken not to throw any more weight into that scale." Parl. Hist. ix. 463.
Among the modern statutes which have strengthened the hands of the executive power, we should mention the riot act (1 Geo. I. stat. 2, c. 5), whereby all persons tumultuously assembled to the disturbance of the public peace, and not dispersing within one hour after proclamation made by a single magistrate, are made guilty of a capital felony. I am by no means controverting the expediency of this law; but, especially when combined with the aid of a military force, it is surely a compensation for much that may seem to have been thrown into the popular scale.
[406] 9 Geo. 2, c. 35, sect. 10, 13; Parl. Hist. ix. 1229. I quote this as I find it: but probably the expressions are not quite correct; for the reasoning is not so.