Several days after this debate, Sir Francis published a letter in Cobbett's Weekly Register, addressed to the electors of Westminster, in which he declared, (among other irreverent expressions,) that the house, inflated with their high blown fanciful ideas of majesty, and tricked out in the trappings of royalty, thought privilege and protection beneath their dignity, assumed the sword of prerogative, and lorded it equally over the king and the people. This indignity, like the hand-bill of Gale Jones, the friends of privilege were determined should not pass with impunity. Mr Lethbridge moved two re solutions, that the letter in question was a libel on the house, and that Sir Francis Burdett had been guilty of a breach of privilege. They were both agreed to; after which it was moved, that Sir Francis should be com mitted to the Tower. The motion of committal was also carried. This was in the morning of Friday the 6th of April, and the speaker issued his warrant for the com mitment of Sir Francis immediately. The serjeant at arms repaired with it to the baronet's house, but not finding him at home, returned between five and six in the morning, exhibited his warrant, and required obe dience to it. The baronet replied, that the warrant was not one which he was bound to obey. The serjeant, unprepared with the necessary means of enforcing obe dience, withdrew. On Saturday morning, the serjeant at arms, with his messengers, went again to the house of Sir Francis, and were again turned out. Soon after this, a troop of the life guards arrived in the street op posite to Sir Francis's house, and used means for dis persing the people, who continued to assemble in great numbers. Sir Francis, upon the appearance of the mi litary, sent for the aid of the civil power, and the she riffs and their constables came. Meanwhile the mob expressed their attachment to Sir Francis, and their in dignation at the warrant, by breaking the windows of the houses of several unpopular characters, among which was Mr Lethbridge's, the mover of the business. Their tumultuary proceedings continued through Sa turday night, and on Sunday an immense assemblage in Piccadilly pelted with mud every passenger who refused to pull off his hat in honour of Sir Francis. In the mean time, Sir Francis's declaration, that he would not sub mit unless to superior force, was thought sufficient cause for assembling the cabinet, and an order was transmitted from the war office to summon every regiment within three days march of the capital. A little before 11 o'clock on Monday morning, the serjeant at arms (ac companied by messengers, police officers, and a large military force,) broke by force into the baronet's house. He was sitting with his family, and on the appearance of the serjeant, asked by what authority he entered his dwelling. The serjeant produced the speaker's war rant, which the other persisted in refusing to obey. He commanded them to desist in the king's name, and called upon the sheriff for his aid. It was answered, that the sheriff was not there. Sir Francis then said, that they should not take him, but by force ; he was accordingly taken with a shcw of force to a glass coach which was in waiting for the purpose. He was conveyed to the Tower, guarded by an immense military force. The capture having been made at an earlier hour than the crowd had expected, he had passed from his house in Piccadilly up Albemarle street, before a cry was set up, " they have taken him, they have dragged him out of his house !" The cry soon spread far and wide ; and before the carrriage had reached the Tower, the mob had blocked up the Minories and all the streets in its vicinity, so that it was necessary for cavalry to clear the way for his reception. This was effected with much tumult, but happily with no bloodshed. At the entrance to the Tower, some of the mob rushed within the paling, and even pelted the cavalry, who, in their turn, cut at them with their swords ; but still without the loss of lives. On the return of the military, however, the insults of the mob provoked them to fire some shots, and several lives were lost among the populace. Some of the sufferers, as is usual in such cases, were not among the actual rioters, and the coroners, who made an inquest, returned a verdict of, wilful murder against a life-guardsman unknown. Every part of the town was, on Monday night, paraded by troops, cannon were planted in several of the squares and streets, all the barracks and depots were filled with soldiers, and guards were mounted in private houses.
The important subject which now agitated the public mind, obviously contained two questions,—the particu lar right of the house over its own members, and their general right to commit a subject. But these questions had a connection which identified them in actual dis cussion ; and as Sir Francis Burdett opposed the speak er's warrant on the broadest supposition of its illegality, his case needed no distinction from that of Gale Jones, except in the aggravation of his house having been en tered by force.
While the extreme parties in politics recriminated on each other the blame of the bloodshed which it had oc casioned, they respectively congratulated themselves on its issue. Ministers, that they had established the privilege ; and the party of Burdett, that he had so bold ly, however unsuccessfully, resisted an act which they deemed tyrannical.
But the extreme parties gained a temporary advan tage by the dispute, which was of more importance to them than the settlement of a point in the constitution. The popularity of such a politician as Sir Francis Bur dett, was not calculated to ride on calm water—it was kept alive by the passions of the multitude, which were now excited most tempestuously to his advantage. Mi nisters had also the double advantage of the public at tention being recalled from the late Walcheren expe dition, and of seeing the constitutional Whigs divided on this occasion. Many of their most respectable op ponents, disgusted at the insults which were offered to the popular branch of the government, thought them selves called upon to support the dignity of parliament, and spoke of rallying round the constitution Others entertaining different notions of the real rights of par liament, took the popular side ; and, in point of legal authority, it appears that the Whigs, who opposed the unlimited committing privilege, were the highest. Re specting the commitment of Jones, Sir Samuel Romilly expressed the strongest doubts of the right of the house to interfere in such an instance.* " Ile doubted whe ther they had a right to commit for a breach of privilege in the case of a libel, on the conduct of one of their own members. He thought the house had a right to commit in a great many cases ; such as where their pro ceedings were interrupted ; where the people, by hiss ing or otherwise, insulted members coming to the house ; where they threatened members, if they voted on a particular side; and in many cases of the like na ture. But he made a distinction between libels publish ed on the past conduct of members, and proceedings still going on in the house. In the latter case, he had great doubts as to the right of committing ; because the house acted as their own counsel, jury, and judge; because they were the accusers and the punishers. They began by reading the paper, and they concluded by ordering the party away without hearing him. Would any court of law act in that way ? The house were the judges of the law and the fact, and the party was committed du ring their pleasure, without any appeal. But all this was only from necessity ; and when the necessity ceased, the power also ceased with it. This was the doctrine held and started by Lord Chief Justice De Grey, in the case of Mr Crosby, who was committed, as a member of that house, for a breach of its privileges. The court of common pleas could not give any relief, because it did not know what were the privileges of the House of Commons. The chief justice said the commitment was lawful, because it was necessary ; and that sheaved, that if it had not been necessary, it would not have been legal. The house had been told of precedents and de cisions of the courts of law. Of those which had been mentioned, the first was in the reign of the Tudors, and that was not a time (he thought) to which the house should refer in defence of its own privileges,—a time when the house were told, at the beginning of each ses sion, that they were not to meddle with matters of state ; and when Queen Elizabeth repeatedly told the house, that they were not to proceed any further in such and such cases. The case of Arthur Hall had been referred to in 1580 ; was it any thing like the commitment of the house ? No; the sentence was to pay 500 merles, and to be imprisoned six months or longer, till he made a re traction. Was there any thing similar between the cases ? Could the house now commit for an indefinite time, or for six months Can it impose a fine, as was done in those days ? He could himself cite many cases, in which the house had, in those times, made commit ments of a most extraordinary nature, and sentenced men to as extraordinary punishments. There was one, of putting two men back to back upon a horse, and lead ing them through the streets, with a particular mark upon them. There was another, in which a new and extraordinary punishment had been invented by the house for the particular offence. But were cases like
these to be cited as precedents on the present occasion He was astonished to see it attempted. With respect to the case of Arthur Hall, Mr Hatsel takes notice of it in his book of Parliamentary Cases, and says, that it was afterwards declared to be derogatory to the dignity of the house. These were, in fact, not deserving the name of precedents ; but were mere exercises of authority, for precedents are only the decisions of a legal judge. The house had also in later times carried their autho rity very high, in the resolutions which they from time to time passed. There was a resolution of the house, March Sth 1704, that no man who had been committed by the House of Commons, should dare to sue for a ha beas Corpus ; but the resolutions of the house were not the laws of the house." On the 7th of May, the speaker having informed the house, that he had received two papers and letters from Sir Francis Burdett, of an action which the baronet meant to institute against him in the Court of King's Bench the ensuing term ; a select committee was ap• pointed to inquire into the proceedings which had already past, and which ought to be adopted in future, respecting the letter and notice of Sir Francis. On the 11th the committee brought up their report, and, through their chairman, moved that the speaker and serjcant at arms should be permitted to appear in the Court of King's Bench, and plead to the said actions ; and that the attorney-general should be instructed to defend the speaker and serjeant at arms.' In the debate which ensued on this report, while the high legal authority of Sir Samuel Romilly was opposed to minis ters, Mr Ponsonby, who was regarded as the leader of the \Vhigs, spoke strenuously in favour of the right of parliamentary commitment, though he severely blamed the administration for bringing the house into its pre sent difficulty, by having brought their real privileges to an unnecessary trial. Since the business, however, had proceeded so far, he thought the house could not retract from maintaining their rights. The two houses of parliament, he said, were the sole judges of their own privileges. No court in the country, however re spectable the judges, could, or ought, to presume to meddle with the decisions of either house. That was the first principle which he should maintain. The next principle was, that whenever either house of parliament has declared its privileges, the courts of justice are bound to pay respect and obedience to them. lie quoted Lord Hale, who asserts, that the law and constitution of par liament were founded on the law of the land, and must be taken as such ; that parliament cannot be adjudged by any other court ; and that the judges of the land had so confessed in many instances. This opinion Lord Hale took from Sir Edward Coke ; and both agreed in distinctly stating, that the law of parliament was not merely so, but confessedly lex terrre. Blackstone also had said, that the privileges of parliament were large and indefinite, and stated, that no court could interfere with the decisions of parliament. Sir Robert Atkins, one of the judges of the common pleas, says expressly, that the power of parliament consists of three heads : legislative, a judicial, and a counselling power ; and that they have the right of exercising the judicial power in defence of their own privileges. In a case of disputed privilege, it is true, Judge Holt had given as his opi nion, that if the right of privilege in all questions was to be admitted, parliament would set no limits, and the people's liberties might be invaded. To that opinion the other eleven judges replied, that it was true: but still there was no limit to their authority ; for the law of the land trusted that they would not misuse their privileges. According to the constitution of things, there never was a government in which some dis cretionary power was not invested. It must subsist somewhere. If the judges of the land were guilty of malversation in their judicial capacity, the house could punish them ; but where was the higher authority than parliament ? There was none. It might be said that parliament was responsible. So they were to the people. If the house acted wrong, the people had their redress by election ; and, when the appeal was made, they might remedy the mischief which the former house had created, by electing other members in their room. The remedy was not to be found in an attempt to take away their privileges. As to what had been said about Magna Charta, and that no man could legally be im prisoned by the law of the land, unless tried by his peers, it might as well be said, that many of the laws were contrary to Magna Charta ; for instance, the canon and the ecclesiastical laws, which are not to be found in Magna Charta ; but nevertheless they are the lex terra, and from immemorial usage, as much as if enter ed in Magna Charta. The privileges of parliament, acted upon from time immemorial, were as much the lex terra: as any of the written laws ; but then it had been said, that the house could not commit libellers to prison, because they would become judges, jurors, and executioners, in their own cause, and Magna Charta would not permit this. But did it ever occur to the modern writers, who threw out such an opinion, when they saw daily the judges of the land punish persons for contempt of court, by committing them to prison, that the judges were then judges, jurors, and execu• tioners, in their own cause. The judges exercised that mixed right, and who could question it ? Was it to be expected, that the judges would wait for a trial by jury before they could punish for a contempt of their authority ? Were they to stand waiting at the door of a grand jury room, waiting for their finding a bill, sub ject all the time to the virulence of popular clamour, and without remedy perhaps, for six, twelve, or eigh teen months, until relieved by the verdict of a jury ? The privileges of parliament, he said, were not inroads on the liherty of the subject, but its safeguards. The commons, who represented the people, were their natural guardians, and their interests were identified. The people, he might be told, would not bear the exercise of those privileges ; but our ancestors, certainly as high 'nettled, as watchful of liberty as the present genera tion, had borne them, when they declared, that one power and privilege vested in the commons defended the liberties of the people. It had been argued, that the crown would protect the people's rights. What in a constitution framed like ours, was the crown to be the defender of the people's freedom ? No ; for (with personal reverence to the reigning monarch) the crown was disposed to be (though not essentially) the enemy of liberty. Why else were there checks put upon it, but that it was natural for man possessed of power to dislike controul ? Had the history of England exhibited the crown as the defender of the people's rights ? If at any time it should be found, that the house was too much an instrument in the hands of ministers, the remedy was easy, it was only to alter the constitution of it ; but never let discretionary power be wrested from it. If the Court of King's Bench are to decide on this question of privilege, they might with equal pro priety decide on all the privileges of the house, if call ed in qestion. If the serjcant at arms was intrusted to execute the orders of the house, and the person on whom they were to be executed chose to resist, and to beat the serjeant, or the messenger, and actions were to be entered against the party offending, the person might say, why, your officer behaved impertinently, and I beat him ; and then the law courts must decide on this, and all the privileges. Was public opinion (he asked) to be the limiter of the judicature of the house ? One politician would abridge them of one privilege, another of another, till, between factions bidding against each other at the auction of popularity, the house would have no privilege left." The motion of the chairman of the committee, already mentioned, was then put and carried. It was next moved and carried, that the attorney-general be directed to defend the speaker and the serjcant at arms against this action. Mr Wynne rose to inquire, whether, in future, it was to be generally understood, that any body might bring actions of this sort against the house, with out fear of its exercising the privilege of commitment. A recent case had been determined before the House of Lords, upon a question of privilege, which he there fore considered as analogous to the present. A Mr Hesse, a justice of peace, had acted under the immediate orders of that house, for the purpose of suppresing a riot. An action at law had been brought against him for his conduct ; but the House of Lords committed both the principal and his agent, and would not consent to release them, until they gave Mr Hesse a discharge from his action. Was the house now to be understood as abandoning that course of proceeding ? The chan cellor of the exchequer said, that he was not then pre pared to give an answer to the general question ; but he would say, that, in every particular ease, he thought the house was perfectly at liberty to exercise its own discretion ; and, in the exercise of his best discretion and judgment, he did not think that it was necessary to commit the agent of Sir Francis Burdett.