Norfolk Gazette And Publick Ledger

From the London Morning Chronicle.

Question as to the practise exercised by the two houses of parliament of construing libel into contempt and punishing it by their own order.

In considering whether a libel can be that sort of obstruction which would justify either a court of law or a house of parliament to exercise the power with which they are invested for the protection of their jurisdiction, it must be admitted that there may be cases of outrage by printed placards, that do tend, clearly and manifestly, to interrupt their proceedings; but the case ought to be flagrant; and the necessity for the exercise of the power manifest on the face of it. We can imagine many such cases. The placards of Lord George Gordon, when 40,000 men went down in rank and file to the house to countenance and support their petition, was clearly an instance where the house ought to have exerted all its powers to remove the obstruction.—But here was something more than libel—here there was open and undisguised intimidation. We own, however, that a contempt may be committed by a libel only. For instance, suppose that a person in high authority over a number of followers, as the commander of a regiment, or the commander in chief, should issue, in orders to his battalion or to the army, a menace against the house of commons, on the occasion of a bill in its progress; it cannot be questioned that the house ought to have the power of summary attachment, to prevent, if possible, the consequences of such a horror. But it is only upon occasions like these, which would not merely interrupt the proceedings and violate the security of parliament, but would overthrow all law, and set at nought the ordinary courts, that ought to prevail on the two houses to resort to a course which, consistently with the spirit of the constitution, can only be applicable to extraordinary times and to dangerous breaches of the peace. We beg leave to give the able opinion of lord Erskine, on the right of summary attachment even by the courts of law. It was an opinion given so long back as 1785, on the occasion of an attachment issued by the Court of King's Bench of Ireland, against the Magistrates of Leitrim, for being engaged in holding a meeting for a reform in the representation of the people in parliament. It was published in this paper in 1798, as being applicable to our case then, and it is applicable to the case of Mr. Gale Jones now; because the proceeding against him is for an act that might clearly, safely, and effectually have been brought before the ordinary courts of law.

Mr. Erskine's opinion of the proceedings of the court of King's Bench in Ireland, by Attachment, written to a gentleman of high reputation at the Bar in Dublin.

Bath, January 13, 1785.

Sir—I feel myself very much honoured by your application to me, on an occasion so important to the public freedom; and I only lament that neither my age nor experience are such as to give my opinion any authority with the court in which you practise; but wherever I have no doubt, I am always ready to say what I think, and you are therefore very welcome to my most public sentiments, if any use can be made of them.

You have very properly confined your question to the particular case, furnished me by the affidavit which you have transmitted to me; and my answers therefore need involve in them no general discussion upon the principles of civil government, which in the mere abstract are not often useful nor always intelligible. The propositions, to which my answers are meant strictly to apply, are,

First, Whether the facts charged by the affidavit, on which your court of king's bench is proceeding against the magistrates of Leitrim, are sufficient to warrant any criminal prosecution for a misdemeanor whatsoever?

Secondly, Whether supposing them sufficient to warrant a prosecution by information or indictment, the court has any jurisdiction to proceed by ATTACHMENT?

As you are pressed in point of time, I can venture to answer both these questions at Bath, without the assistance of my books, because they would throw no light upon the first from its singularity, and the last is much too clear to require any from them.

As to the first—the facts charged by the affidavit do of themselves neither establish nor exclude guilt in the defendants. In one state of society such proceedings might be highly criminal; and, in another, truly virtuous and legal.

To create a national delegation amongst a free people, already governed by representation, can never be, under all circumstances, a crime; the objects of such delegation, and the purposes of those who seek to effect it, can alone determine the quality of the act, and the guilt or innocence of the actors.

If it points (no matter upon what necessity) to supercede or to controul the existing government, it is self evident, that it cannot be tolerated by its laws. It may be a glorious revolution, but it is rebellion against the government which it changes.

If, on the other hand, it extends to further than, to speak with certainty, the united voice of the nation to its representatives, without any derogation of their legislative authority and discretion; it is a legal proceeding, which ought not indeed to be lightly entertained, but which many national conjunctures may render wise and necessary.

The attorney general might, undoubtedly, convert the acts, contained to the affidavit, into a legal charge of a high misdemeanor; which, when properly put into the form of an information, the defendants could not demur to: but he could not accomplish this, without putting upon the record averments of their criminal purposes and intentions; the truth of which averments are facts which he must prove, as well as the other facts upon which they are founded.
must establish at the trial, or fail in his prosecution. It is the province of the jury, who are the best judges of the state of the nation, and the most deeply interested in the preservation of its equality, to say, by their verdict, whether the defendants acted from principles of public spirit, and for the support of good government, or sought seditiously to disturb it. The one or the other of these objects could be collected at the trial, from the conduct of the defendants in summoning the meeting, and the purposes of it when met.

If the jury saw reason from the evidence to think that its objects, however coloured by expressions the most guarded and legal, were in effect, and intended to be, subversive of government and order, or calculated to stir up discontent, without adequate objects to vindicate the active attention of the public, they would be bound in conscience and in law to convict them: but if, on the other hand, their conduct appeared to be vindicated by public danger or necessity, directed to legal objects of reformation, and animated by a laudable zeal for the honour and prosperity of the nation; then no departure from accustomed forms in the manner of assembling, nor any incorrect expressions in the description of their object, would find, or even justify, a jury to convict them as libellers of the government, or disturbers of the peace.

To constitute a legal charge of either of these offences, the Crown (as I before observed) must aver the criminal intention, which is the essence of every crime; and these averments must be either proved, at the trial, or, if to be inferred prima facie, from the facts themselves, may be rebutted by evidence of the defendants' innocent purposes. If the criminal intent charged by the information be not established to the satisfaction of the jury, the information, which charges it, is not true; and they are bound to say so by a verdict of acquittal.

I am therefore of opinion (in answer to the first question), that the defendants are liable to the prosecution by information; but that the success of such prosecution ought to depend upon the opinion which the people of Ireland, forming a jury, shall entertain of their intention in summoning the meeting, and the real bona fide objects of the assembly when met.

It is necessary to enlarge upon these principles, because their notoriety has no doubt suggested this novel attempt to proceed by attachment, where they have no place; and I cannot help remarking, that the prosecutor (if his prosecution be founded in policy or justice) has acted with great indiscretion, by shewing that he is afraid to trust the people with that decision upon it, which belongs to them by the constitution; and which they are more likely to give with impartial justice, than the Judges whom he desires to decide upon it at the expense of their oaths and of the law.

This is a strong expression, which, perhaps, I should not have used in answering the same case in the ordinary course of business; but writing to you as a gentleman, I have no scruple in saying, that the judges of the court of King's Bench cannot entertain a jurisdiction by attachment over the matter contained in the affidavit which you have sent them, without such a gross usurpation and abuse of power, as would make me think it my duty, were I a member of the Irish parliament, to call them to account for it by impeachment.

The rights of the superior courts to proceed by attachment, and the limitations imposed upon that right, and established upon principles too plain to be misunderstood.

Every court must have power to enforce its own process, and to vindicate contempt of its authority; otherwise the laws would be despised, and this obvious necessity at once produces and limits the process of attachment.

Wherever any act is done by a court, which the subject is bound to obey obedience may be enforced and disobedience punished, by that summary proceeding. Upon this principle attachments issue against officers for contempts in not obeying the process of courts directed to them, as the ministerial servants of the law, and the parties on whom such process is served, may, in like manner, be attached for disobedience.

Many other cases might be put, in which it is a legal proceeding, since every act which goes directly to frustrate the mandates of a court of justice, is a contempt of its authority. But I may venture to lay down this distinct and absolute limitation of such process, viz.--That it can only issue in cases where the court, which issues it, has awarded some process--given some judgment--made some legal order--or done some act, which is binding, have either neglected to obey, contumaciously refused to submit to; excited others, to defeat by artifice or force, or treated with terms of contumely and disrespect.

But no crime, however enormous, even open treason and rebellion which carries with them a contempt of all law, and the authority of all courts, can possibly be considered as a contempt of any particular court, so as to be punishable, by attachment, unless the act, which is the object of that punishment, be in direct violation or obstruction of something previously done by the court which issues it, and which the party attached was bound, by some antecedent proceeding of it, to make the rule of his conduct. A constructive extension of contempt beyond the limits of this plain principle, would evidently involve every misdemeanor, and deprive the subject of the trial by jury, in all cases where the punishment does not extend to touch his life.

The peculiar excellence of the English government consists in the right of being judged by the country in every criminal case, and not by fixed magistrates appointed by the crown. In the higher order of crimes the people alone can accuse, and without their leave, distinctly expressed by an indictment found before them, no man can be capitally arraigned; and in all the lesser misdemeanors, which either the crown, or individuals borrowing its authority, may prosecute, the safety of individuals and the public freedom absolutely depend upon the well known immemorial right of every defendant to throw himself upon his country for deliverance by the general plea of--Not Guilty. By that plea, which in no such case can be demurred to by the crown, or questioned by its judges, the whole charge comes before the Jury on the general issue, who have a jurisdiction co-extensive with the accusation, the exercise of which, in every instance, the authority of the court can neither limit, supersede, control, or punish.

Whenever this ceases to be the law of England, the English constitution is at an end, and its period in Ireland is arrived already, if the Court of King's Bench can cover every crime, by construction, into a contempt of its authority, in order to punish by attachment.