66 mentary Privileges not with relation to is therefore quite apparent, that the assumed right of the House of Commons can only be supported upon the ground of imprescriptie usage, or Common Law of the Land. Now, Sir, we will enquire a little into the doctrine of established usage. It is a clear and indisputable maxim, that no usage can exist in opposition to a written law; it is almost an abuse of time to support so well known a proposition by authority; but Blackstone, in his first volume, p. 77, has these words, "no custom "can prevail against an Act of Parlia"ment:" Now, Sir, let us see how the written law stands in opposition to the usage claimed by the House of Commons. Blackstone says, in the same vol. p. 69, "That the famous Magna Charta is the "oldest w. tien law extant" As it is an historical fact, however, that the House of Commons did not exist prior to Hen. 3rd, it may be said, that Magna Charta is not of equal authority with an Act of Parliament. It is scarcely possible to suppose that such an observation could be made; but I raise it hypothetically, and the answer is decisive; Magna Charta was confirmed by an Act of Parliament in the reign of Hen. 3; and in the following reign of Edw. 1, the same was again confirmed; and Lord Coke says it has been more than thirty times confirmed. Well then, the written law, by Act of Parliament, enacts the protection of every individual of the nation, in the free enjoyment of his Life, Liberty, and Property, unless declared to be forfeited by the Judgment of his Peers, or the Laws of the Land. Are the Privileges of Parliament the Law of the Land? If by Parliament be meant one branch of the Legislature, I say it has not the privilege of imprisoning a British sub-vileges of either House of Parliament in ject, without an appeal against the sen- respect of the commitment and detention tence, because that would be to give cus- in prison of a British subject, without aptom and usage superior efficacy to the peal; I submit then, that such a usage written law in effect to repeal such writ- could not be supported upon any principle ten law, but that cannot be, as appears by consistent with laws made for the protecthe passage before quoted from Blackstone, tion of the public weal. Blackstone says, and again in the 1st vol. p. 89, where it is If a custom is actually proved to exist, said, "Where the Common Law and the" the next inquiry is into the legality of "Statute differ, the Common Law gives "place to the Statute." I know it is insisted, that the Privileges of Parliament are omnipotent and indefinable; and Blackstone in vol. 1, p. 163, has that declaration from Sir John Fortescue, to whom the Lords in the reign of Henry the 6th, put a question respecting their Privileges; but it will be found on reference to this Judge's speech, that he spoke of Parlia A. D. 1215." But, to suppose that either house possessed omnipotent and undefined privileges, not to be investigated or enquired into by any other power, is to make the laws of the realm repealable at pleasure without an act of parliament, which appears totally subversive of any fixed and determinate laws. Upon the maxims therefore, Sir, of our laws, it seems clear and indisputable, that no usage can affect, alter or repeal a written law; and consequently, no usage of either branch of assembly can alter or repeal Magna Charta; ergo, neither house of legislature can imprison a subject, and detain him in custody, at pleasure, without appeal elsewhere.-But, Sir, for argument sake, let it be supposed that no written law interfered with the exercise of the Pri it; for if it is not a good custom, it ought "to be no longer used," malus usus abolendus est," is an established maxim of law." 1 vol. 76. A custom, which is to have the force of a law, must, if it proceed from any power not absolutely despotic, be consistent with, and tending to the welfare of the country where it is to be exercised. It is for that clear and self evident reason, that it becomes necessary to ascertain that a usage claimed to have the force of law, be not injurious, and militating against the public good; and therefore, says Blackstone, a very natural and very material question arises; How are those customs "or maxims to be known, and by whom "is their validity to be determined? The "answer is, by the Judges in the several "courts of justice." It should seem to outrage every principle of common sense to say that he who insists upon a usage to be exerted for his own benefit and pleasure, should himself determine whether the custom is of that nature, that it ought to have the force of law. It surely can. not be necessary to inform the reader, to shew the propriety of this reasoning, that the learned Selden in his Jud. Parl. 11, says, They cannot be Accusers and Judges." And this principle, that none can be judges of their own rights, is so manifest, that I remember it is laid down by a very respectable and learned authority, I believe in Rolle's Abridgement, that if an act of parliament, as it cannot change the laws of nature, says a man shall be judge in his own cause, it shall be void. Upon what ground therefore can either branch of the legislature claim a privilege which, if no written law opposed it, would be completely at variance with the natural principles of law and justice? When I hear a current of authorities quoted in different reigns in support of the powers of the House of Commons to detain in prison, and the incompetency of any tribunal to enquire into the legality of the commitment or detention, I cannot help reflecting upon the times when the greater part of these precedents are found to have been made. I cannot but remember the unsettled state of a House of Commons at such periods, and the struggles the people were making against the power and encroachment of the Royal Prerogative; I cannot forget either that Judges held their situations under a most precarious tenure, and that many decisions are discoverable in remote books of authority, which no man at the present day would hesitate to condemn as corrupt, and contravening the known, acknowledged, and immutable principles of Justice. Under such circumstances should much be yielded to precedent, when the principle laid down is unsatisfactory in reason, and opposite to the familiar maxims of those laws under whose influence we are kept together in society, and our actions regulated? In a recent Case of the Queen (Anne) v. Paty, in Salkeld's Reports, certainly the Judg ment of the Court of King's Bench was in favour of the right now exercised by the House of Commons; but it is matter of serious consideration, that the Judges were not unanimous, and that three who assented, contented themselves to assert the right unaccompanied by any argument to shew either its propriety, or upon what authority founded: and that the Judge who differed, stands higher in public estimation as a lawyer, and a man of talent, than either of his coadjutors; or than many of his predecessors or successors; that he condescended to use arguments which were unanswered; and that that Judge (Holt) said, "When the House of Commons exceed their legal bounds and authority, their acts are wrongful, and cannot be justified more than acts of private men." Indeed, can there want a Holt to tell us what seems intuitive; and yet must the House have the right of exceeding all bounds, all authority, if there be no means of ascertaining their powers, but themselves who enforce their own decisions. If the present usage of the House be law, and their acts are inscrutable, and without redress, let me ask what would be the condition of the subject, if a corrupt house should exist, with a minister possessing sufficient influence to command a majority of votes in favour of his measures? Sir, I will not occupy more of your time upon this important question, than by observing, that with every disposition of respect towards the House of Commons; with every anxiety that their legitimate privileges should be uninvaded; I am yet to reconcile the privilege they claim, with the known laws of the land, or those principles of natural justice which are the cement of civilized society. I had omitted to observe, that it is said every Court of Record has the power of committing for Contempt; I admit this-the principle is clear and satisfactory. Every Court of Record is established to carry into effect the laws and not to have the power of committal in cases of contempt, would be to allow an interruption of the administration of those laws:-the Court. therefore, must, in furtherance of public justice, have the right of committal. I concede all this right to the House of Commons ;-what I insist, is, that as every Court of Law is subject to have the legality of such commitment examined into by another Court, so ought the legality of a commitment of the House of Commons to be traversed. | of the County of Cambridge. (Cries of The injury is not in the Commitment, "No, No! even there he was a jobber.”) but in the refusal to have the accuracy of Mr. Keene concluded with proposing the such Commitment ascertained according right honourable Charles Yorke, as a fit to the law of the land, as in other cases and proper person to represent the County established and exercised.I am, Sir, of Cambridge. (Shouts of disapprobation &c. W. F. S. March 29, 1810, Lincoln's Inn. PROCEEDINGS AT THE RECENT NOMI- On Tuesday, the 13th of March, pursuant to public advertisement, the Freeholders of the county of Cambridge were convened at Cambridge, for the purpose | of nominating a fit and proper person to represent that county in Parliament. The concourse of persons assembled was most numerous. The High Sheriff' briefly stated the object of the meeting, and exhorted it by its orderly demeanor to exemplify the truest test of patriotism, and the proud characteristic of Englishmen. The two Candidates and their friends were on the right and left of the High Sheriff, upon a small gallery in the front of the Rose Inn. When Mr. Yorke first made his appearance, the whole atmosphere resounded with cries of-Off, off — clear the Gallery, clear the Gallery! Numerous placards, with these words, were then exhibited from the windows of the surrounding houses. MR. KEENE first addressed the Freeholders. He stated that he presented himself to their notice for the purpose of proposing for their choice his right honourable friend near him, who had been five times the object of their selection. (Cries of" Never again—We want no Placemen-Is it again to close the Gallery?" He appears before you after a trial of twenty years; during the whole of which period he has unremittingly applied himself to the promotion of your interests. That opinion this county itself has pronounced by so frequently re-electing him, and did there exist any justifiable reason for now changing its conduct there could be no inducement which should compel him (Mr. Keene) to propose Mr. Yorke to their consideration. At all events, whatever differences of a political complexion may exist between some persons and his right -honourable friend, sure he was that all would agree in testifying that zeal and attention which Mr. Yorke had uniformly Manifested in promoting the local interests if to tly vorhy mixed with partial applause.) MR. YORKE next presented himself, and for many minutes it was impossible to hear a single word. The cries of " Placemen❞ "clear the Gallery," and "turn him out," were re-echoed from one end of the area to the other. The High Sheriff at length entreated silence, so that each Candidate should be heard, and therefore afford the best means for forming a proper selection. MR. YORKE trusted, that he did not presume too much, when he asked for a patient hearing. (Off, off, we don't want you.) That was the fifth time that he had been a Candidate, and upon no one occasion did he ever before observe the person who addressed them, refused a patient hearing. But, undoubtedly, from the mixture of the meeting before him he was not much surprized at his reception. They could not be the Freeholders of the County of Cambridge, indeed, one would be almost inclined not to consider them Englishmen, who would refuse to hear a man upon his defence. (Off, off, your conduct is indefensible.) It was quite impossible that any strength of lungs amidst such an uproar could command a hearing. I observe (said Mr. Yorke) many of the gen tlemen of the University at this meeting; had they studied, or at least practised the doctrine of Pythagoras, they would at least have appreciated more highly the value of silence. (The clamour became so great, that the right honourable gentleman became wholly inaudible.) The Marquis of TAVISTOCK then offered himself to the notice of the meeting; but was for a short time interrupted by a small party of Mr. Yorke's friends, who, placed immediately under him, endeavoured to drown his voice.-The noble marquis spoke to the following effect:-Freeholders of the county of Cambridge; You are now called upon to exercise one of the most valuable privileges of Englishmen, to decide upon the merits or the demerits of those who, either upon public grounds, or for private objects, propose themselves for your choice, as your future Representative in the Legislature of this county. In forming a proper choice upon the present occasion, it behoves you to keep fully in your consideration all the circumstances which have led to the vacancy in your representation. The Constitution has wisely determined, that when a Member of Parliament accepts of a place of profit under the Crown, he shall be sent back to his constituents (in case he thinks proper again to come forward), in order that they may pronounce their judgment upon the propriety of his political course,-upon the motives which have appeared to guide it; but above all upon the particular acceptance of that place which in the spirit and letter of the Constitution, invalidated him from longer continuing in his representative capacity. These are the grounds upon which it is your duty to canvass the conduct of the right honourable gentleman (Mr. Yorke), and unless I am much mistaken upon each and all of them, you must, in a true exercise of the obligation you owe your country, pronounce his forfeiture to a re-election (hear! hear!) We have heard this day much of the private virtues of that gentleman. A stranger as 'I am to him, it would ill become me to deny or to doubt them. Indeed from what I have heard, I believe him to be most exemplary in all the relations of private life. Still these are not the qualifications which establish the claim to a public trust. It is not upon domestic qualities, but upon political principles and conduct, that freeholders should depend for the performance of those duties which they have a right to expect from the man to Was he not the whom they entrust their representation.Try Mr. Yorke by this criterion, and then judge of his present pretensions. Has he not been the uniform undeviating supporter of that Administration, under whom this country has been most lamentably affected in all its interests? an Administration, by whom the pressure of taxation has been increasing until it has become almost intolerable; an Administration under whom herds of foreign troops have been introduced into this country in defiance of every positive constitutional provision, and to the dangerous hazard of our rights and our security (Hear! hear!) -an Administration under whom the calamities of England, and the power of France, have advanced with equal force? Yes; amidst the active supporters of such a system, the right honourable Mr. Yorke will be found to be the most prominent (Cries of hear, hear !) man to revive, upon a late public Inquiry, the old exploded cry of Jacobinical Conspiracy? Did that Inquiry furnish any proof in extenuation of such an unjustifiable expedient? Or, rather, did it not fully evince to the country, that such an effort was but an artifice to prevent the honest and unprejudiced opinion which the nature of the charges were calculated to produce? Such has been the public conduct of the man whom the Freeholders of Cambridge delegated as their Representative. What conclusion does it now enforce? It proves beyond controversy the necessity of your sending to parliament one who will take his stand on the broad ground of the Constitution-who will uphold our liberties, and contend for the laws and principles of our forefathers, against the excesses of popular violence on one hand, and the no less dangerous encroachments of the over-grown power of the Crown on the other. Hear, hear, hear!) Can you expect to find such a guardian of your interests in Mr. Yorke? (No, No! He who has been the supporter of the present Ministers-men who possessed themselves of official power by the most unfounded and degrading pretences, and who have used it only to tarnish the character and disgrace the Councils of their Country. Will you select him who availed himself of the Standing Order of the House of Commons (an Order enacted for far other purposes), thus depriving the people of this country of the slender and melancholy consolation of knowing who were the authors of the ca lamities under which they are labouring, of the accumulated miseries under which they groan, with a patience and a forbearance unexampled in the history of nations? When such have been the political acts of that right honourable gentleman, were the people of the country fully and fairly represented in Parliament, he might go from county to county, from city to city, from town to town, and would not get one single elective body to confide in him. Under these circumstances I feel myself called upon to recommend to your notice, and to propose for your choice, a friend to civil and religious Liberty, to the freedom of the Press, to the just security of the Throne, and the rights and liberties of the people -a decided enemy to faction and intrigue, to all the devices of peculators, to all the artifices of corruption, to that long catalogue of abuses which now obscure the fair form of the British constitution-I propose Lord Francis Godolphin Osborne. The honourable Mr. BRAND stated his desire to second the nomination of Lord Francis Osborne [the honourable gentleman was here interrupted by an individual in the crowd exclaiming," Off, off, you Jacobin]." Mr. BRAND resumed. I am interrupted by a person not a freeholder. His name is Hodson, a printer in this town, and both from his conduct and his character, too contemptible to attract my notice, were it not for the expression he has now made use of. I tell him and his supporters, that I am no enemy to my country, that I am no Jacobin; indeed, the man seems as fully ignorant of the meaning of the terms which have fallen from him, as he is incapable of appreciating the value of that privilege which this meeting is summoned to exercise, and which that Mr. Hodson is so tumultuously endeavouring to interrupt [from the freeholders, cries of "drive Hodson out"]. At present, I shall content myself with simply seconding the nomination of the Noble Lord, wholly abstaining from any observation upon the political conduct of Mr. Yorke, unless he shall be allowed the opportunity of replying to what has been advanced. LORD FRANCIS OSBORNE then came forward amidst shouts of applause, mixed with disapprobation, and assured the Freeholders that he would trouble them but for a very short time. He offered himself with the proud consciousness of wishing to be a servant of the people, and not a servant of the Court. The cause in which he stood forward, was not his, it was that of the country. He was merely the instrument to afford it the opportunity of performing a great public obligation. During the time he had been in parlia ment, he had the satisfaction to feel that he had honestly and patriotically done his duty, without any personal view-indeed it was well ascertained that his unshackled parliamentary conduct had been attended with private circumstances, not of the most beneficial nature. With respect to the local interests of the county, both from his age and inexpérience, he could not be supposed to be as conversant with them as the right hon. gentleman, Mr. Yorke, but he trusted to supply the deficiency by an earnestness and a zeal not at all inferior to that which he understood was justly upon this point attributed to Mr. Yorke. During the period of his being in the House of Commons, although he sometimes concurred with Mr. Yorke, yet upon most great political questions, he felt it to be his duty to take an opposite side. Identified as he felt his success with the interests of the County of Cambridge, he had nothing to do but to commit the cause to their hands, and to confide in their support. MR. GUNNING said, It is only once in seven years, that we can comment on the language and conduct of the Teller of the Exchequer without the risk of his sending us to Newgate. Let us not lose the opportunity, now we have him in a TANGIBLE SHAPE. It is not my intention to review the whole of his political career, that would be an unnecessary waste of your time, for the former part of his conduct, has been entirely of a piece with the latter, he has the merit of consistency and perseverance, but it is consistency in error, perseverance in doing wrong. Of his early conduct, therefore, I shall merely observe, that of every oppressive and unconstitutional measure, of every measure, which had for its object to increase the burthens or diminish the privileges of the people, he was the zealous advocate. If the Liberty of the Press were to be restrained, if the Habeas Corpus Act were to be suspended, if our Fellow Creatures were to be hunted down with blood hounds in the West Indies, or torture inflicted upon our fellow subjects in Ireland, the Minister was sure of the support of that right honourable gentleman: Of his conduct, when he filled two very important offices in the State, little need be said, for nothing very re |