HC Deb 31 March 1840 vol 53 cc288-94
On the Motion of the Attorney-General,

the Sergeant-at-Arms appeared at the bar, and acquainted the House that on Saturday last, the assistant-sergeant and four other officers of the House were served with a notice that a declaration in an action had been filed against them in the Court of Queen's Bench, at the suit of Thomas Burton Howard, and he had thought it his duty to obtain a copy of that declaration.

The declaration was then delivered in, and read by the clerk at the table. The damages were laid at 1,000l.

The Attorney-General

then said, that in the absence of his noble Friend the Secretary for the Colonies, it became his duty to make a motion on this subject, in which he had the concurrence of his noble Friend. From the verbiage of the document which had just been read, it was difficult to discover either what was the exact form of the action to be brought, or what it was of which the plaintiff complained. It did not appear that he questioned the privileges of the House or the legality of the warrant, but what he said was, that there was an excess of violence on the part of the officers of the House in the execution of that warrant. The hon. and learned Member for Ripon, whom he did not then see in his place, had, he believed, received a letter from Mr. Howard on that subject, and he himself had received one purporting to come from Mr. Laurie, Mr. Howard's solicitor, in which he stated that the complaint was of excess of violence on the part of the officers of that House. The question was, what course ought the House to adopt under these circumstances. He thought there could be no doubt, that whenever an action was brought involving the privileges of this House, the House had a right, and was called upon to interfere in a summary manner with its authority. He did not regret what the House had already done in vindication of its privileges; on the contrary, he thought that it had only exercised a constitutional and very wholesome power. The question, however, involved in the present case, was whether the officers of the House had been guilty of any excess in executing the warrant of the House; and this was a question which the House, and the House only, had a right to inquire into. The Court of Chancery, it was well known, would not allow an action to be brought against one of its officers for any alleged excess in the execution of their duty, but upon complaint made would cause inquiry to be made into the circumstances, would punish the offender if there had been any breach of duty on his part, and award compensation to the injured party. And was the House not to do the same by its officers if it thought proper? If any complaint were made by petition, alleging that its officers had acted improperly in the execution of the warrants of the House, it ought to interfere, inquire into the circumstances, and award such compensation as the case seemed to merit. But the question in this case was whether under all the circumstances, it would be expedient for the House to exercise this power in the present case. He thought as the privilege of the House had not been called in question by the plaintiff in this action, that the House should resolve, not that the Attorney-general should be instructed to appear and defend the action, but that the servants of the House, being the defendants in this case, should be allowed to appear to and defend the action. For his own part, he had no doubt that it would be found that the defendants had been guilty of no excess in the execution of their duty, and that they had done no more than the warrant of the House justified and required them to do. It appeared that they had merely entered the house of Mr. Howard—that no opposition had been made to their so doing—that interchanges of civilities had passed between them and the parties in the House whilst they remained there—and that it was only after frequently calling, that they were enabled to execute the warrant against Mr. Howard. On such evidence as this, he (the Attorney-general) thought there must certainly be a verdict for the defendants, as they had done nothing more than their duty, and what the House required of them. He thought, under all these circumstances, that the most prudent and dignified course for the House to adopt, would be to allow the servants of the House (the defendants in this case) to appear to and defend the action; and he would therefore conclude with a motion to that effect.

Viscount Howick

rose, and said, that it was not his intention to take up the time of the House by entering into any arguments against the course which the lion, and learned Gentleman had just advised the House to pursue in this matter, because he was well aware of the large majority that was ready to support that course. He could not, however, allow the House to submit to this further concession, and still more humiliating course than any to which they had already given way, without entering his protest against it. Any one who had listened to the lion, and learned Gentleman on this occasion, must have observed that he himself felt the humiliating submission which he was advising the House to enter into. He tells the House that the Court of Chancery would not suffer its privileges to be invaded by any law proceedings against its officers for an excess of duty, but would take into its own hands the punishment of those officers, and the compensation of the injured parties, if an excess had been committed; and yet the hon. and learned Gentleman recommends the House of Commons to submit to what the Court of Chancery would not tolerate. It could not be denied, that the constitutional mode of proceeding would be for the parties complaining of any excess of duty by the officer of the House to petition the House to punish the offending party, and compensate the injured. Why, then, was the strict Parliamentary course to be now departed from? What indulgence, he would ask, did the complaining party here deserve from the House of Commons. Mr. Howard had brought repeated actions questioning their privileges, and he was now in Newgate for that offence, and he had never yet offered to make the slightest concession. This was the person for whom they were to depart from the usual constitutional course. The hon. and learned Gentleman says, he is confident that no trespass has been committed, and that such will be the opinion of the Court of Queen's Bench. Now he was confident of no such thing. After the decisions to which that court had already come upon this subject, directly opposed as they were to all former decisions, he had no confidence whatever in that court. The Court of Queen's Bench might lay it down, that the officers of the House had no right to enter Mr. Howard's house at all; and there might be found many other grounds on which the court would decide against the defendants. The House was now about to submit itself unequivocally and for ever to the Courts of Law. This was the consequence of the false step they had taken by introducing the bill which they had passed the other night. They must hold all their privileges for evermore at the discretion of the Courts of Law, and must submit to have every exercise of their power questioned in those courts. "I, for one," said the noble Viscount," will not be responsible for the adoption of this humiliating and injurious course; for if I stand alone I will give my negative to the motion of the hon. and learned Gentleman."

Mr. O'Connell

quite agreed in the views of the noble Lord who had just spoken upon this subject. The House had over and over again by resolution asserted its privileges by large majorities. There was an unanimous opinion amongst all legal men in the House, that the Court of Queen's Bench was wrong. Not only those on his side, but also the very eminent Gentlemen on the other side. They might differ as to the reasons, but they all unanimously came to the same conclusion, that the Court of Queen's Bench was wrong. The jury might be so di- rected by the judge, and might have given the entire of the 1,000l. at which the damages were laid; or the judge might for the trespass direct the jury to give one farthing, and the jury, turning rampant, might give the whole amount at which the damages were laid. The House was then asked to do what the Court of Chancery would not condescend to do—and was virtually called upon to affix a limit to its privileges—by submitting to a court of law the time (whether two minutes, or two minutes and a half, and that by a stop watch, perhaps) in which the officers of the House would be justified in remaining in the house of a person to whom the Speaker's warrant might be directed. Such a shrinking from the assertion of its privileges on a former occasion had involved the House already in difficulty, and would involve it in further difficulty. It would be a much more eligible course to examine the officers of the House at the bar, to ascertain from them what they had done Mr. Howard would then have an opportunity of contradicting or affirming their statements by a petition to the House, and could, as he had already done, communicate with such Members of the House as he thought most likely to support him. He could also claim compensation from the House for whatever (if any) excess in the discharge of their duties had been committed by the officers of the House; but he must protest against the question being referred to the Court of Queen's Bench or to any other legal tribunal, because the consequence of such reference would create a conviction in the public mind, when they saw the House shrinking from the assertion of its privileges, that no such right or privilege did exist.

Mr. T. Duncombe

admitted the imputation which had been thrown out against him by the hon. and learned Member who had last spoke, of having been in correspondence with Mr. Howard. [Mr. O'Connell said, that he alluded to the hon. and learned Member for Ripon.] Yes, but the same remark applies equally to me. The hon. and learned Member for Ripon, and it seemed the Attorney-general also as well as himself, had been in communication with Mr. Howard, who on that occasion did not complain against the warrant or its just execution, but he complained because it had been illegally executed. In fact, he complained of excess being committed by the officers of the House; that his house had been broken open; that the officers were ten hours in possession of his house and created great disturbance. For that outrage he sought compensation from the laws of his country—and to that redress, supposing; the excess to have been committed, he was justly entitled. It was said that Mr. Howard might petition the House for redress. Mr. Howard had had already experience sufficient of the mode in which redress had been given to petitioners by that House. Mr. Howard had written a letter, dated Newgate, March 12, 1840, stating that had not Mr. Gossett kept out of the reach of the service of the writ, the declaration would have long since been filed, and notice of such declaration served upon him. For that reason he hoped for the support of hon. Members to oppose the bill (the Printed Papers Bill) then in progress through the House, and to prevent his becoming the object of ex post facto legislation, by depriving him of the redress to which he would be entitled in a Court of Law for the excess committed by the officers of the House. In his opinion Mr. Howard was perfectly right not to petition the House for redress—for no attention would be paid by the House to his petition or to its prayer. A petition had been presented from Mr. Stockdale a short time ago, and it was decided that the petition was an insult to the House, and that it ought not to be received. It was read twice, and he sincerely believed that if it had been read the third time it would be received; for many hon. Members, not knowing their own minds, had followed the opinions propounded by the two noble Lords who took so prominent a part in rejecting that petition, and if an opportunity offered of reconsidering that opinion they would vole for its admission. Mr. Howard was of right in appealing to a Court of Law. Did the House, on a former occasion, interfere and prevent Sir Francis Burdett from taking an action against Mr. Speaker Abbot? Was that hon. Baronet then told to petition the House, and seek redress from its justice for the excess which formed the ground of his action against the Speaker? No such intimation was given by the House, and if it were offered it would not very probably be accepted.

Mr. Pryme

contended that there was no such plea in the declaration as that of excess; so that the superstructure of the argument of the hon. Member who had last spoken entirely failed. The declaration stated the trespass of entering his house, &c.; and it was only in the replication to the pleading of the defendant that the excess could be pleaded. He would support the motion.

Sir W. Follett

approved of the course suggested by his hon. and learned Friend the Attorney-General, and cited the recent instance where the Sergeant-at-Arms was directed to make a return to the writ of habeas corpus issued by the sheriffs, when the Court of Queen's Bench decided that they would not inquire into any thing but the Speaker's warrant. When the question of compensation in damages for the alleged excess came before the Court of Queen's Bench, it would, no doubt, adopt a similar course of proceeding, and the question at issue between Mr. Hansard and the officer of the House was one which was strictly a question for a Court of Law and a jury to decide. No such intimation as that suggested by the noble Lord, the Member for Northumberland land, had been given to Sir F. Burdett who brought an action against the Sergeant-at-Arms (as well as the Speaker) for an excess in the discharge of his duty.

The Attorney-General

in reply protested against the imputation of concession or retractation of the privileges of the House, which had been urged against him.

The Solicitor-General

said that it was a duty which he owed himself to give his unqualified and utter dissent to the course then pursued by his hon. and learned Friend, the Attorney-General. He did so with regret; but he did it from paramount self-justice.

The House divided. Ayes 142; Noes 51— Majority 91.

List of the AYES.
Alston, R. Bruce, Lord E.
Bailey, J. Bruges, W. H. L.
Baring, rt. hon. F. T. Buck, L. W.
Baring, hon. W. B. Buller, C.
Barnard, E. G. Buller, Sir J. Y.
Barneby, J. Clay, W.
Barry, G. S. Clerk, Sir G.
Basset, J. Collier, J.
Bethell, R. Compton, H. C.
Blackburne, I. Coote, Sir C. H.
Boldero, H. G. Dalrymple, Sir A.
Bradshaw, J. Darby, G.
Briscoe, J. I. Darlington, Earl of
Broadley, H. Denison, W. J.
Brocklehurst, J. Dick, Q.
Douglas, Sir C. E. Mahon, Viscount
Duffield, T. Marton, G.
Duke, Sir J. Maunsell, T. P.
Duncombe, T. Milnes, R. M.
Duncombe, hon. W. Monypenny, T. G.
Dundas, C. W. D. Morgan, C. M. R.
Du Pre, G. Muskett, G. A.
Egerton, W. T. Neeld, J.
Eliot, Lord Neeld, J.
Filmer, Sir E. Nicholl, J.
Fitzalan, Lord Norreys, Lord
Fitzroy, hon. H. Paget, F.
Fitzsimon, N. Pakington, J. S.
Fleming, J. Palmer, R.
Follett, Sir W. Palmer, G.
Forester, hon. G. Parker, R. T.
Fort, J. Patten, J. W.
Fremantle, Sir T. Peel, rt. hon. Sir R.
Gaskell, J. M. Perceval, hon. G. J.
Glynne, Sir S. R. Phillpotts, J.
Gordon, R. Planta, right hon. J.
Goulburn, rt. hon. H. Polhill, F.
Graham, rt. hn. Sir J. Praed, W. T.
Grey, rt. hon. Sir C. Pusey, P.
Grimsditch, T. Richards, R.
Hamilton, C. J. B. Rolleston, L.
Hawes, B. Round, C. G.
Hayter, W. G. Shaw, rt. hon. F.
Heneage, E. Sheppard, T.
Hepburn, Sir T. B. Slaney, R. A.
Herbert, hon. S. Smith, R. V.
Herries, rt. hn. J. C. Somerset, Lord G.
Hodgson, F. Stanley, hon. E. J.
Hodgson, R. Stewart, J.
Holmes, hon. W. A. Stuart, Lord J.
Hope, hon. C. Sturt, H. C.
Hope, G. W. Style, Sir C.
Houstoun, G. Teignmouth, Lord
Hughes, W. B. Thesiger, F.
Hurt, F. Troubridge, Sir E. T.
Inglis, Sir R. H, Turner, W.
Jackson, Serjeant Tyrell, Sir J. T.
James, W. Vernon, G. H.
Johnstone, H. Villiers, Viscount
Jones, J. Vivian, J. H.
Kemble, H. Waddington, H. S.
Knatchbull, rt. hon. Sir E. Wall, C. B.
Ward, H. G.
Lambton, H. Wilshere, W.
Langdale, hon. C. Winnington, Sir T. E
Lascelles, hon. W. S. Winnington, H. J.
Law, hon. C. E. Wyndham, W.
Lemon, Sir C. Wyse, T.
Lister, E. C. Yates, J. A.
Lucas, E. Young, J.
Lygon, hon. General TELLERS.
Mackenzie, T. Campbell, Sir J.
Mackenzie, W. F. Grey, rt. hon. Sir G.
List of the NOES.
Archbold, R. Busfeild, W.
Beamish, F. B. Corbally, M. E.
Bellew, R. M. Courtenay, P.
Bewes, T. Craig, W. G.
Brabazon, Lord Davis, Colonel
Brodie, W. B. Divett, E.
Brotherton, J. Dundas, F.
Edwards, Sir J. Philips, M.
Evans, Sir De L. Protheroe, E.
Evans, W. Pryme, G.
Ewart, W. Redington, T. N.
Fenton, J. Rundle, J.
Finch, F. Sanford, E. A.
Gisborne, T. Scholefield, J.
Hector, C. J. Staunton, Sir G. T.
Hill, Lord A. M. C. Strickland, Sir G.
Hobhouse, T. B. Tancred, H. W.
Horsman, E. Turner, E.
M'Taggart, J. Vigors, N. A.
Marsland, H. Warburton, H.
Martin, J. White, A.
Melgund, Viscount Wilbraham, G.
Morris, D. Williams, W.
Muntz, G. F. Wood, B.
O'Brien, W. S.
O'Connell, D. TELLERS.
O'Connell, J. Howick, Viscount
O'Connell, M. J. Wilde, Sir T.