§ The Solicitor-General
, in rising to call the attention of the House to the communication made on the day previous by the Sergeant-at-Arms, should not feel it necessary to enter into a discussion of any of those questions of privilege which had excited so much debate and so much warmth of feeling, as well within the walls of that House as out of doors, a few years ago; it was his intention to propose to the House to adopt a course which had repeatedly received its sanction upon previous occasions of a similar nature, the precedents for which all ran one way, and which at no very distant period had been adopted by the House at the instance of his hon. and learned Friend the Attorney-General to the late Government. In order to render the case clear, he would state to the House the course he proposed to adopt. The officers of the House had made a communication to the House that they had been served with certain legal proceedings. The legal proceeding was a declaration in trespass. Upon the face of that declaration nothing of course appeared at all affecting the privileges of the House; but the officers communicated to the House that the action of trespass was brought against them in consequence of their having executed a certain warrant issued by the Speaker in furtherance of a resolution passed by that House. This report having been made to the House, it now became the duty of the House to decide the course that its officers should take. There was but one of two courses that could be adopted. Either the House must say to its officers, "You are not to plead to this action, you are not to defend it, you are not to take any notice of the process of law that has been served upon you—you are to suffer judgment to go by default," or the officers must be permitted to plead to the tion. If the House gave directions to its officers not to plead, of course there would be no defence. The judges of the court in which the case was entered for trial would not know the grounds upon which the officers of the louse had taken the plaintiff into custody—there would be no justification, no defence, and judgment would go by default. The next step would be, that a sheriff's jury would be impanelled to assess the damages. Here again in the Sheriffs' Court, there would be no defence, no explanation. The consequence of course would be, that the jury, in assessing the damages, would in all probability give a 24 very heavy sum for trespass and false imprisonment without justification. Then what would be the next step? The House must protect its officers. How would it do that? Why, it would then have to summon to its bar the plaintiff or his attorney. That would not stop the action; and the House would next have to consider whether it would commit the jury which assessed the damages, the sheriff who presided, and the officer who executed the process. The House would have to go on with committal after committal, and the result would be that it would not prevent the damages from being levied. This was one course which it would be open to the House to pursue. The other course open to it was, to permit the officers to defend the action, to appear to the action, to plead to the action, and to state to the court that they committed the alleged trespass and alleged false imprisonment by the order of the House of Commons, and under the warrant of the Speaker. With this defence, the House might allow the action to be tried before the court, and have the question decided by the judges and the jury—by the judges who were bound to administer the law of the country, and who, the House might suppose, would administer it impartially and justly; and, as a portion and part of the law, would be bound to respect the constitutional power and privileges of the House. That was the other course open to the House to pursue. Let him now pause to inquire what the course had been in all similar cases. It was to be borne in mind, that the action in the present case was very different from those which had been the subject of discussion some years ago, and which arose out of the publication of certain parliamentary papers. The House thought it might, in consequence of the judgment of the Court of King's Bench, in the action brought by Stockdale, and in a subsequent action of a similar nature, not to allow the parties to plead. He would [not enter into a discussion of that question upon the present occasion; but would confine himself to the species of actions which formed the immediate subject of their consideration—he meant those actions in which legal proceedings for trespass and false imprisonment were adopted against the officers of the House of Commons. It would be found that in all the recent instances, and in all the instances for the last thirty or forty years there had been no difference in the 25 course of proceeding adopted by the House: in all cases it had allowed its officers to appear, and plead, and state the grounds of their defence to the action. The first precedent, and the most important one, was the action brought by Sir Francis Burdett in 1810. Sir Francis Burdett had been committed to the Tower by the vote of that House. The House had resolved that he had been guilty of a breach of its privileges, and passed a vote directing the Speaker to issue his warrant to the Sergeant-at-Arms to take him into custody. The Speaker issued his warrant accordingly, and the Sergeant-at-Arms was directed to carry it into execution. Resist- I once was made. It became necessary to call out the military force. The military force was called out; the house of Sir Francis Burdett was broken open, and Sir Francis himself was taken into custody, and conveyed by the Sergeant-at-Arms to the Tower. Sir F. Burdett afterwards brought his action, not only against the executive officers of the House, but against the Speaker of the House of Commons, expressly and avowedly for the purpose of contesting the right of the House to direct his committal. That was the avowed object of the actions instituted by Sir Francis Burdett. He informed the House—he informed the Speaker that that was his sole object. Sir Francis Burdett, at the same time that he brought his action against the Speaker, also brought another action against the Sergeant-at-Arms for the purpose of trying, not the legality of the warrant under which the Sergeant-at-Arms had acted, but whether the Sergeant-at-Arms was justified in using force to accomplish the execution of it. In consequence of these actions, a committee of the House of Commons was appointed, consisting of some of the most distinguished Members then sitting in the House. That committee made a report, from which, with the permission of the House, he (the Solicitor-general) would read one of the passages. It was followed by a very able discussion in the House, which terminated in a vote of the House permitting, the Speaker at the Sergeant-at-Arms to appear to the actions. The language of the report of the committee in 1810 appeared to him (the Solicitor-general) to be extremely applicable to the case now under the consideration of the House. The committee, in their report, said,And it appears, that in the several in stances of actions commenced in breach of the 26 privileges of this House, the House has proceeded by commitment, not only against the party, but against the solicitor and other persons concerned in bringing such actions; but your committee think it right to observe, that the commitment of such party, solicitor, or other persons, would not necessarily stop the proceedings in such action. That as the particular ground of action does not necessarily appear upon the writ or upon the declaration, the court before which such action is brought cannot stay the suit or give judgment against the plaintiff, till it is informed by due course of legal proceeding that such action is brought for a thing done by order of the House. And it therefore appears to your committee, that even though the House should think fit to commit the solicitor or other person concerned in commencing these actions; yet it will still be expedient that the House should give leave to the Speaker and the Sergeant to appear to the said actions, and to plea to the same; for the purpose of bringing under the knowledge of the court the authority under which they acted; and if the House should agree with that opinion, your committee submits to the House, whether it would not be proper that directions should be given by this House for defending the Speaker and the Sergeant against the said actions.The consequence of this was, that the Speaker and the Sergeant-at-Arms were permitted to defend the actions brought against them. The result of the action was this: the Speaker pleaded a plea which distinctly put at issue the question whether or not the House of Commons had a right to vote a person guilty of a breach of its privileges, and, having come to such a vote, whether the House of Commons had the legal and constitutional power to direct the committal of the offending party. The question was argued with great learning and ability in the Court of King's Bench. The Court of King's Bench gave a solemn and deliberate opinion that the House of Commons did possess that constitutional privilege; that it had the power to vote a person guilty of a breach of its privileges, and that it had legal and constitutional power to follow up its vote by the committal of the offending party. Upon this judgment of the Court of King's Bench Sir Francis Burdett brought a writ of error. The question was argued in the House of Lords; the House of Lords confirmed the judgment of the Court of King's Bench, and he (the Solicitor-general) apprehended that no question whatever could now arise as to the right of the House of Commons upon these particular points, acknowledged as that right would be, and had been, by every judge in every 27 court of law in the country, that the House of Commons had the power to decide upon its own privileges; to vote, if it pleased, that a party had been guilty of a breach of its privileges, and to follow that vote up by directing its officers to take the offending party into custody, and commit him to prison; that the House was legally and constitutionally vested with these powers he could hardly imagine that any one could question. Neither could he imagine for a moment that any party would now-a-days enter an action at law for the purpose of solemnly bringing in question any of these rights and privileges of the House. He (the Solicitor-general), was satisfied, that the moment it appeared to the Court of Queen's Bench, or to any other court of law in the kingdom, that the defendants in any such action had proceeded under the warrant of the Speaker, issued in furtherance of a vote of the House of Commons, there would at once be an end of the case. In the instance to which he had referred—the instance of the proceedings instituted by Sir Francis Burdett in 1810, the action against the Sergeant-at-Arms was left to a jury—was left to them to determine upon this question—whether, under the circumstances, the Sergeant-at-Arms had been guilty of an excess. The action was tried before a Middlesex jury; the point he had just mentioned was left as a question to the jury, and the jury by their verdict declared that they were of opinion, that the Sergeant-at-Arms had not been guilty of an excess. These were precedents, established in 1810. The House were now informed by the Sergeant-at-Arms, that an action had been brought against him for executing the warrant of the Speaker. If there were no other precedent than that to which he had referred—considering the grave and solemn decisions upon which it was founded, and considering, also, the character of the parties upon whose proceedings and whose judgment it rested—he should ask the House, without hesitation, to follow the course then taken. But there were several other cases to which he might refer, as possessing almost equal weight, when viewed in the light of precedents—he meant the cases which had been made the subject of very warm and earnest discussion during the time that his noble and learned Friend Lord Campbell held the office of Attorney-general under the late Government. The question came before the House immediately after the 28 committal of the sheriffs. He wished upon the present occasion to separate the question of the right of the House to issue printed papers from the question of the authority and power of the House to commit a person for breach of its privileges. For all the purposes of the present discussion it was desirable that these two questions should be kept distinct and separate. The sheriffs applied to the Court of Queen's Bench for a habeas corpus, and the officer of the House made a report to it, stating that he had been served with such a writ, and requiring directions how to act. Two courses were then open to the House. It might have said, "You are to pay no attention to the writ—do not appear to it;" or it might have taken another course, by ordering its officer to appear, and to state to the judges that he held the parties in custody legally, by virtue of a warrant from the Speaker, founded upon a vote of the House of Commons The late Attorney-general had proposed that the Sergeant-at-Arms should be permitted to take the second course; he therefore did appear to the habeas corpus, and made a return that he held the parties in custody by virtue of the Speaker's warrant. An argument was raised on the legality of the warrant, and the court recognised the right of the Sergeant-at-Arms to detain the parties in custody. That precedent occurred in 1840, and there was another precedent in the same year; Mr. Howard, who had brought the present action against Sir W. Gossett and Mr. Bellamy, had commenced another action against the officer of the House. It was for a trespass in breaking and entering his dwelling, in execution of the very same warrant which was the subject matter to-day. There was no difference whatever, as it was the same warrant then as now. The action was not only for breaking and entering Mr. Howard's house, in Norfolk-street, but for remaining there a longer time than was necessary. What did the House do? It followed the previous precedent exactly; for the Attorney-general moved that the officers of the House be permitted to appear to defend the action. They did appear and defend. The action was tried in the last recess, the complaint being, first, that the officers had broken and entered the plaintiff's house; second, that they had remained in it longer than was necessary. The first would have put in issue the legality of the warrant; the second was independent of it. On an examination of the 29 facts, it turned out that the officers, in their zeal to discharge their duty to the House, had exceeded their duty, and the strict limits prescribed by the law; they had entered the House, had searched it from bottom to top, and being then satisfied that the party they sought was not in it, they continued there several hours, in order to ascertain whether the owner would return. The Lord Chief Justice had held that the officers of the House were not justified in that course—that they had been guilty of excess; and so informing the jury, a verdict was found for the plaintiff with 100l. damages. He certainly thought that the damages were beyond the injury, and larger than were necessary; and he regretted it the more because the party seemed to have been emboldened by it to bring another action against Sir William Gossett and Mr. Bellamy; that action, as he (the Solicitor-general) understood, was for taking the party into custody, pursuant to a vote of the House, and for conveying him to Newgate, after the House had decided that he had been guilty of a breach of privilege, and that for that offence he should be imprisoned in Newgate. He trusted that in this instance there had been no irregularity, no excess, and that the officers of the House would be able to make a sufficient defence; but he could not think that that was a question which ought to decide the course it was fit for the House now to take. The House ought not to consider whether any irregularity or excess had been committed; for if the officer had been guilty of any, he could see no reason why it should not be compensated. Such being the state of the case, it was his intention to propose that the officers of the House be at liberty to appear and plead to the action. He should adopt exactly the terms employed by Lord Campbell in 1840, and, as that proceeding was so completely in point, and so recent, he hoped that no difference of opinion would be entertained. It was right for him to add, that if there had existed no precedent, he should, nevertheless, have counselled that course; he thought it the right course—less inconvenient with less likelihood that the privileges of the House would be called in question or injured in popular esteem. What the House claimed as a privilege was a constitutional right, and he could not suppose for a moment that the constituted authorities of the land would decide contrary to what had been formerly recog- 30 nised as law. He was quite sure if there had been no irregularity in the execution of the warrant, that the judges would determine that what had been done was no trespass, and that the officers were justified by the directions of the House of Commons. He moved—That Sir William Gosset, knight, the Serjeant-at-Arms attending this House, have leave to appear and defend the action brought against him by Thomas Burton Howard, for trespass.The motion having been seconded and the question put,—
Sir T. Wylde
said, he could not concur in the motion. He apprehended that the House had never been placed in a situation in which more caution was necessary than at present. In his opinion, what was proposed by his hon. and learned Friend would be little better than a surrender of the independence and privileges of the House. It had been urged that the House might depend upon it that its privileges would be safe in the hands of a court of law. He had been a little surprised to hear his hon. and learned Friend make that statement, because he should have thought that all that had lately occurred, and to which his hon. and learned Friend had alluded, would have led him to the very opposite conclusion. The Court of Queen's Bench entertained not the slightest doubt that it was not necessary to the public interests that the House should have the power of publishing its proceedings on such matters as were interesting to the public. Scarcely had that decision been pronounced, when the Legislature came to a determination in direct opposition to the opinion of the court. He should have thought, therefore, that his hon. and learned Friend would have arrived at a conclusion, that the privileges of the House could not be safely entrusted to courts of law. Every judge had expressed a most decided opinion that the claim of the House, on behalf of the public, to make known such matters as were deemed interesting, was not well founded. On the other hand, the Legislature had declared that no obstruction or impediment ought to exist to the publication of the proceedings of the House. Thus the Court of Queen's Bench had recently shewn its incompetence to protect the public interest, by taking into its hands the question of Parliamentary privilege. He regretted that longer notice had not been given of the motion in the hands of 31 the Speaker, because it was necessary on a subject of this kind to collect authorities, to bring forward precedents, and to ascertain the principles on which those precedents were established. Those who had only an opportunity of seeing the motion in the middle of the day, could hardly have had time enough to furnish themselves with the necessary information. He contended that experience had abundantly shown that the House ought never to surrender its privileges to the decision of a court of law. His hon. and learned Friend had mentioned the case of Sir Francis Burdett, and when his hon. and learned Friend added that he now proposed to follow the course which had always been pursued, his hon. and learned Friend committed a great mistake. His proposition was utterly at variance with the whole course of precedents, with the exception of a few modern cases, to which he (Sir T. Wilde) would advert presently. The House of Commons had never committed its privileges to courts of law, and to establish this point he could refer his hon. and learned Friend to precedent after precedent; but he would first look at that of Burdett and Abbott. That case ought to be a warning to the House of Commons instead of an example. It was not because the Court of King's Bench had entertained an opinion favourable to the privileges of the House that the course of submitting its privileges to the decision of a court of law ought to be adopted. The court might have taken a different view of the matter. It might then have been as opposed to the privileges of the House and to the real interests of the public as the Court of Queen's Bench had shown itself in the case of Stockdale and Hansard. But it became the House to inquire whether the course taken in 1810 was so taken, with the views and on the grounds stated by his hon. and learned Friend. The very reverse. His hon. and learned Friend had asserted that the privileges of the House would be safe in the hands of the Court of Queen's Bench; but Sir Vickery Gibbs had recommended that course, in the full belief that the court would not entertain the question. It turned out that his opinions on the subject were fallacious. In the debate Sir V. Gibbs followed Mr. Windham, who opposed the recommendation of allowing the question to go to a court of law on the justest grounds. Sir Vickery Gibbs urged that course, because he thought as soon as the 32 Court of King's Bench found that the House had resolved that it possessed the privilege, the judges would thereupon instantly give judgment in favour of the defendant. Sir V. Gibbs did not believe that the court would assume the right of deciding whether the House did or did not possess the privilege; but he admitted that it was necessary to apprise the court of the nature of the action, and of the grounds on which the defence rested. That mode of informing the court of the nature of the action, and of the grounds of the defence, had always been taken advantage of in order to give the court jurisdiction. In the debate to which he referred the Attorney-general, Sir V. Gibbs said,The Attorney-general did not wish to detract anything from the power and jurisdiction of the courts of law; but still when he considered the many cases in which the ablest judges of the courts of law allowed that the privileges of Parliament were above their jurisdiction, he could not believe that so many able and learned judges were all mistaken about their jurisdiction; and he therefore thought that the privileges of that House had been firmly recognised as the law of the land.In what shape had they been recognized? In the shape that the Houses of Lords and Commons were the exclusive judges of their own privileges. Not that the privilege was to depend upon the opinion of one court or of another court, because courts might differ upon the question; what one court might consider quite clear and not requiring argument, another court might deem extremely doubtful and open to dispute. Thus the House and its privileges might be bandied about from court to court, until at last it found that it had lost its place in the constitution—that it was merely subordinate and subservient, and that it could assert no power and assert no privilege for the benefit of the people. The Attorney-general continued,—As to the opinions which had been delivered by Sir F. Pemberton and Sir T. Jones in the case which had been so often alluded to, he understood their opinions to be entirely as to the form or the plea.This observation related to the case of Jay and Topham, where the judges had been called to the bar of the House and committed; but they both distinctly stated that it appeared upon the plea that it was done by order of the House of Commons, and that no judge would attempt the question or enter into an investigation whether the House possessed the privilege or did 33 not possess it. The judges held that there was an informality in the plea, and such would ever be the case; the undoubted rights of the Commons of England, when once brought within the pale of courts of law, would be held to depend upon the nicest technicalities. Was it fit that the privileges of the House of Commons ought to be made to depend upon the rules of special pleading? Sir Vickery Gibbs added that the judges, in the case of Jay and Topham,—Did not deny that the matter of the plea would be a complete defence; but they conceived that the plea had not been put in as the form of the law required. He could not agree with his hon. and learned Friend (Sir S. Romilly) that the courts of law could ever take into their consideration and judgment the existence of the privileges claimed by the House. They were the only judges of their own privileges, and their decision upon them was binding in a court of law.Such was the language of the Attorney-general of that day, upon whose recommendation his hon. and learned Friend (the Solicitor-general) was founding himself. Sir Vickery Gibbs had maintained that the House was the only judge of its own privileges. He was a great lawyer, and was proposing a particular course; how did he defend it? He went on to say, that it was necessary to inform the court, that what had been done had been done by the authority of the House; and when so informed, the court would not entertain the case. In what situation had Sir V. Gibbs afterwards found himself, when engaged in two or three days' argument upon the question whether the House did or did not possess the privilege? So far from the judges of the King's Bench holding that it was not open to the parties to discuss whether the House possessed the privilege it claimed, they listened to a long and learned discussion upon the subject. True it was that the court had ultimately decided that the House did possess the privileges, but it might have decided otherwise, and then in what situation would the House have been placed? The course taken was recommended by Sir V. Gibbs, because he thought that the court would refuse to enter into the question of privilege. But the case of Sir F. Burdett was peculiar. He spoke it with all respect; but he thought it necessary to state his strong conviction that the House deserted its duty when it allowed that plea. It was obvious why it did allow it; it thereby 34 escaped for the moment from a great difficulty. Sir F. Burdett had impugned the constitution of the House as representing the people, and that was not a question on which it was convenient for the Government to appeal to the people; the more it was debated, the greater was the disgust excited, at least on the part of a considerable portion of the people. Therefore they would rather submit to anything than to a discussion whether Sir Francis Burdett ought to be committed as a libeller for asserting that the House of Commons did not represent the people. The Government of the day had therefore thought it convenient to allow the plea to be pleaded. It thus deserted the ancient practice it had until then pursued. Having most diligently searched, with no other desire than that of ascertaining truth, he could state confidently that there did not exist a single instance to support the course then recommended. He could point out instance after instance where the House of Lords and the House of Commons had prevented cases from being proceeded with, by arresting the parties and holding them in custody until they discharged the actions. There was a recent instance in the House of Lords, where a Mr. Bell, being asked for his umbrella as he entered the House, gave it to an officer to be placed where it was supposed it would be secure. The umbrella was lost, and Mr. Bell sued the officer for the value of it. Lord Eldon was chancellor at the time, and the party being brought before the House, was committed until he consented to discharge the suit. Another case had occurred, he believed, in 1768:—There was a riot in Palace-yard—the Peers were annoyed and obstructed, and "45" was chalked upon their coaches. A magistrate of the name of Hewitt caused a person to be taken into custody—the House of Lords having given some orders for clearing the approaches. An action was brought against the magistrate, and the House of Lords had the plaintiff's attorney and all the parties brought before it. Lord Camden was then chancellor, and the parties were committed until they discharged the action. In fact, there was no precedent to the contrary. His hon. and learned Friend had commenced with Burdett and Abbott, and with that precedent he must commence. That case, as he had said, ought to operate as a warning, not as an example; because the Court of King's Bench did enter into the question whether the privilege claimed 35 by the House did or did not exist. The case was carried to the House of Lords, and what was the inference? That the privileges of the House, as far as that case was concerned, depended upon the decision of the House of Lords. He was at issue with his hon. and learned Friend as to the constitutional course of proceeding. He maintained that it had not been the constitutional course to allow courts of law to decide upon the privileges of the House. Stockdale brought his action against Hansard, and there was, first, a plea of the general issue, and then a justification, that the publication charged as a libel and indecent was what it had been described. The inspector of prisons had found the book and had reported the fact. The case came before Lord Denman at Nisi Prius, and he ruled instantly, on the first plea, that the House possessed no such privilege; on the second plea the jury found that the book deserved the character given to it. The plaintiff had sued in formâ pauperis, and, therefore, there was end of the matter; but, in consequence of what Lord Denman had said, Stockdale sent his son to buy another copy of the report, and then he brought a second action. The question arose, what was to be done? The charge was, that Hansard had published this report on the management of prisons, asserting that a certain indecent book was accessible to the young and old prisoners. How was the House to sustain its privileges? Lord Campbell had certainly suggested that the House should plead its privilege, but he differed widely from his noble Friend on the propriety of that course. It seemed to him a bad precedent, that the House should put a plea on the record which left the matter to the opinion of the court. He had said that if that plea were entered, it must not be expected that the Court of Queen's Bench would take it for granted, that the House possessed the privilege, because it asserted it, but that the judges would take upon themselves to consider the question. In fact, they had decided that the House did not possess the privilege. On what ground, he would ask, did the privileges of the House rest? Only upon this—that privileges are necessary to enable the House to discharge its functions. Beyond what was necessary to enable the House properly and effectually to discharge its functions, it was usurpation and oppression upon those who were subject to its authority. But who was to decide what was necessary for the due dis- 36 charge of the functions of the House? The necessity for privilege must necessarily vary with the occasion; the nature and degree of the obstruction or opposition to which it might be exposed no man could foresee. The Houses of Lords and Commons possessed the power of enabling themselves to discharge their functions, by whatever force they might be resisted; it was impossible to state what power might be required for such a purpose; and who then was to decide the point? The House only could judge when the occasion arises; it must look at the public exigency, and limit its privilege to the power that was necessary. It was to be surrendered, also, whenever the necessity ceased, and how could courts of law enter into or form a judgment upon any such question? Could courts of law determine what power or authority might or might not be necessary? Certainly not. Privilege was founded upon Parliamentary usage—upon actual usage, or upon principles growing out of usage. The journals of the House were not proper evidence of the fact in a court of law; but they were evidence in Parliament itself. Courts of law could not, therefore, be put in possession of legitimate evidence upon the question of privilege, and how could they turn aside from the rules by which they were bound, in order to institute such an inquiry? Privilege did not depend upon the common law, but upon Parliamentary law: and it was nothing less than idle for lawyers to attempt to decide upon it, whether they were on or off the bench. In Stockdale and Hansard the court decided against the House, and subsequently the House had not pleaded. Then came the case of Howard against Gossett, and the question again arose—what was to be done? The plaintiff had intimated to the Attorney-general, and to the other legal advisers of the Crown, that he did not bring that action to question the authority of the House to grant the warrant, but because its officers had been guilty of excess. On this account the House had permitted the plea to be entered; but where there had been no excess, no such plea had been allowed to be entered. Thus, there was the case of Burdett and Abbott, in which the court took upon itself to discuss whether the House had or had not the privilege; and next came the case of Stock-dale and Hansard, in which the court decided that the House had no such privilege: now the case of Howard and Gossett was under consideration, and what 37 had occurred there. It was said that excess had been committed, but who was to determine the question of excess, until he had first defined the limits of just authority? A lawyer would not be seduced by being told that the warrant was regular, what, according to strict technical rules, would be held regular. Was it fit that Parliament should thus be brought within the trammels of courts of law. It was the duty of courts of law to apply technicalities; but they were utterly inapplicable to cases of Parliamentary usage. His hon. and learned Friend (the Solicitor-general) had referred to the case where a writ of habeas corpus was moved for by the sheriffs. What had then occurred ought not to be forgotten. It was said, that the courts would admit the privilege; but what said Lord Denman? It was formerly supposed that commitments by the House were sufficient; but Lord Ellen-borough had thrown out a hint, whether the cause of commitment, if it were stated on all occasions on the face of the warrant, might not sometimes be found obviously absurd. That was the small end of the wedge. These exprsssions by Lord Ellen-borough ought to have been sufficient to warn the House; but then followed Lord Denman, who strongly insinuated that the House had had recourse to an irregular warrant. Here were the obiter dicta of two learned judges—first in the case of Burdett and Abbott; and, second, in that of the sheriffs; and the result might by and by be, that the court would think it necessary to go the length of investigating the cause of commitment. On this account he ever bore in mind what Lord Denman had said about the cause of commitment not being disclosed in the warrant. A brief had been delivered to him (Sir T. Wilde) to assist his hon. and learned Friends the Attorney and Solicitor-generals in the case of Howard and Gossett; but he had found that one of the objections was, that a man had gone to execute the warrant whose name was not in it; another objection was, that the officers remained in the House too long—in short that the warrant was to be judged, not by Parliamentary rules, but by the strict rules of law. Those strict rules of law seemed to him inapplicable, and he believed that the Court of Queen's Bench was about to be called upon to add another to the modern precedents of exercising jurisdiction in matters of privilege. He had some reason to think that the At- 38 torney and Solicitor-generals differed from him in opinion, and he thought under the circumstances that it would he unseemly in him to act as counsel with them. He had therefore returned the brief, and said that he could not act in a case which he thought would be perilous to the privileges of the House? How did the case proceed? He must say, with all humility, that in his opinion the Attorney and Solicitor-generals appeared to have surrendered the case; they seemed to take it for granted that the warrants of the House were to be limited and judged of like ordinary documents—the mere warrants of magistrates committing offenders to prison. That position he denied; the counsel for the plaintiff examined all sorts of objectionable commitments, and had talked of what the House of Commons might not do if it were not restricted in its power. His hon. and learned Friends were not prepared to defend the warrant, and admitting the excess, a verdict for 100l. damages was recovered. In the second case the jury gave 500l almost without seeing the book, and ascertaining whether it was or was not indecent, and the damages and costs in both cases had been paid by the House. He had read the right hon. Baronet's (Suit. Peel) reasons for not allowing the officer of the House to plead in the former cases, and he wished that his hon. and learned Friend the Solicitor-general had read them also. They were sound and cogent reasons. The right hon. Baronet admitted the great difficulty in which the House was placed. He admitted that it was very difficult for the House to decide as to the course the House should take. To enter upon a contest where the privileges of the House were contested must ever be deeply regretted. He was aware of the dire result, but it was a result infinitely less direful than that the House should lose its place in the constitution. That was the choice held out to them. The course taken last Session had held out a premium to parties to bring actions and to try their privileges, and they would never maintain those privileges till they showed their due authority. With the honest intention of supporting the just authority of the House, hon. Members had consented to suggestions, which, being misapplied in the particular case, had done much injury to that authority, without obtaining any of that benefit which was anticipated. The arguments and the votes of hon. Members had dragged the House into a position 39 in which they did not intend to have placed it. What he advised the House to do was, not to act hastily, in order to get rid of a present difficulty. He advised them to look well at the course they should adopt—to attend, with all respect, to the recommendations of his hon. and learned Friend; but not unadvisedly, and without grave consideration, to adopt them. The House had already resolved that they were the judges of their own privileges; they had resolved that it was a breach of their privileges for any court to enter upon their propriety or fitness; they had resolved that to bring an action to try the title of those privileges was also a breach. These resolutions stood upon their journals. Let them, if they pleased, appoint a committee; let them rescind those resolutions, and place their privileges upon the basis on which they should think they ought to stand; but let them not claim the possession of a power, and show themselves by their acts incompetent to maintain it, and unfit to be entrusted with it. He was aware that they could get rid of a momentary difficulty by pleading to the action; but the principle they would adopt would be far more important. Let him suppose a case of the exercise of their privileges. His hon. Friend the Member for Finsbury (Mr. T. Duncombe) had thought it necessary to call to the bar of the House the person having the custody of the register of electors for the county of Hertford. He (Sir T. Wilde) thought that was a very proper proceeding, and essential for the information of that House in the exercise of its privilege of judging in election matters, but he should have been very sorry to see that power called in question before the Court of Queen's Bench. There were occasions, many similar, for the interference of the House, so much opposed to the pursuits of lawyers, able and honest though they might be, that they would not be safe in intrusting the right to their decision. Did they mean always to plead to these actions? They would say to him, in reply, "No; we will be governed by the occasion." Then there never was a case which more required a decisive course. Mr. Howard brought an action, not for any excess, not for any irregularity, but to contest the power of the Sergeant-at-arms to execute the warrant issued by the Speaker on the authority of the House. Was that a question to send to a court of law for decision? What question would they not send to the law 40 courts if this were allowed to be taken? In the case of Burdett v. Abbott, the Attorney-general recommended the House to plead that what had been done bad been done by the authority of the House, and then he said that the court would not investigate whether the House possessed the power or not. It turned out that the Attorney-general was mistaken. He could not look upon the case of Burdett v. Abbott, without recollecting the time at which it occurred, and that it was possible the Government of that day might rather go to the courts of law than take upon themselves the responsibility of braving popular opinion. That was the first of his hon. and learned Friend's cases. The second case was that of Stockdale v. Hansard. His learned Friend asked how the courts of law were to know of the privilege if it were not pleaded? That was what his noble and learned Friend (Lord Campbell) had answered to him (Sir Thomas Wilde), and it was said that by not pleading they would be exposing the House to difficulties which they had avoided incurring on all former occasions. The House had acted upon his noble Friend's advice! they had pleaded, and had given the courts the power of determining their authority, and when the decision was against them, hon. Members refused to interfere, because, they said, "you have pleaded, and now you have got a decree against you, you wish to evade it; to this we will not agree." Then came the case of Howard v. Gossett; again he (Sir Thomas Wilde) objected that they ought not to plead; but another reason was given for differing from him—it was an action for excess, and only for excess, and hon. Members said, "how can you avoid pleading in a matter of excess?" Why, that was placing the power entirely in the hands of the court. None of the former cases, however, could be cited as applicable to this. The action must go on, it was said, unless the House pleaded, and unless the court knew the authority of the House. Why, it would go on notwithstanding their plea. And what would be the effect of their pleading? It would be to displace the House from its position in the constitution. Was it, or was it not, essential that the House of Commons should be co-ordinate with the House of Lords? It had been heretofore the practice of the House of Commons to be watchful—they had hitherto discussed the conduct of courts of law. Recent experience had shown that if judges stepped 41 out of the strict line of their duty be it never so little, when there was a primâ facie case for inquiry, the House was ready though it might not be willing to institute an inquiry into the conduct of the judges. He did not think that they ought not to undervalue the influence on the courts of law of this state of things. Let them displace the House, however, from its position in the constitution, and it certainly appeared to him that they would deprive the House of this power, and they would deprive the public of the greatest security for the faithful and impartial administration of justice. How could they, then, agree with his hon. and learned Friend to submit their privileges to the judges? His hon. and learned Friend could not show one privilege of the House which had not been denied by some judge or the other. They should remember that one of the first steps which had inflicted the most grievous injury upon constitutional liberty had been the attack upon the privileges of that House. The seizure of five Members had led to a great infringement of public liberty. The privileges of the Commons were held in trust for the people, and the Commons could not resign those privileges without a base desertion of their duty. They were an ingredient in the constitution, inferior in importance to none. With regard to the House of Lords. How were they to be independent of the House of Lords, if the House of Commons was to be subordinate? The House of Lords had attempted to usurp original powers, and what had prevented them? The House of Commons. It would make one House subordinate to the other if they pleaded because an action at law might go by writ of error to the House of Lords. They might do so, but they would have altered the constitution of the country; they would have deprived the country of one of the elements of safety. The House of Lords had always maintained a control over, and had been the judges of, their own privileges. They had the power to protect their own privileges—the House of Commons had also the power to protect theirs. It was, therefore, most important that the House of Commons should keep their own privileges, and thus each House would be left to its own independent exercise of its rights and duties. They held those rights in trust for the people of England, and they were bound to see them neither abused nor abandoned. It was true that in former and bad times these 42 privileges had been abused; but if it were shown that there had been abuses on the part of the House of Commons, he would undertake to show similar instances of abuse on the part of the House of Lords. Floyd's case, which was perhaps the most disgraceful of any, had been acquiesced in by both Houses; it was the act of both. The question was, would the House maintain its own privileges? or would they permit an action of law to be brought to hand over those privileges to the courts of law? He would show what course the Court of Chancery took under similar circumstances. If an officer of the Court of Chancery executed the process of the court, although it was irregular, yet, if an action were brought against the officer, the court would punish or commit the plaintiff, as he believed it would also do the attorney bringing the action; because he was sure that the court would not permit an attorney to do an act for which it would punish a plaintiff. There were several instances of the exercise of this power. It was exercised in the case of May v. Hook, 2 Dickens, 619, on 3rd February, 1774, the record of which was as follows:—A motion was made in the February following by the plaintiffs, 'That all proceedings in a certain action at law, brought by the defendant John Hook against the said E. Wilkins (the next friend,) and the plaintiffs Betsey and Hannah May, in his Majesty's Court of King's Bench, for an assault and imprisonment, may be stayed, in the presence of Mr. Attorney-general, of counsel with the defendant Hook. Whereupon, and upon hearing the said order of the 26th of June last, and what was alleged by the counsel for the said parties, and the plaintiffs submitting to make the defendant Hook such satisfaction for his imprisonment on the attachment as shall be approved of by one of the masters of this court, his lordship doth order that it be referred to Mr. Eames, one, &c, to consider what will be reasonable satisfaction to the defendant in respect thereof; and it is further ordered that the plaintiffs do pay the same to the defendant Hook, together with the costs directed by the said former order.'One of the recent cases was before Lord Eldon, and they could have no higher authority. In the case of Frowd v. Lawrence, 1 Jacob Walker, 655, a party had been taken on attachment from the Court of Chancery, which had been set aside for irregularity. An action was brought, and the party bringing it was committed. The Lord Chancellor (Lord Eldon,) in delivering judgment, said:—In this case an attachment, under, which 43 the defendant was taken up, issued irregularly, and, upon his application, it was afterwards discharged with costs. No application was made to this court to visit the proceeding upon the parties concerned; but the defendant, after the attachment is discharged, brings an action at law for damages, and a motion is now made to me for an injunction to restrain him, brevi manu, from going on with it. I need not point out the importance of the question, because it is one between this court and the right of the subject to ask of a jury whether he is not entitled to damages for being deprived of his liberty. It was stated that there was a case in 'Vernon,' in which it had been expressly laid down that the court would not permit such an action to go on. That was a very strong case. The ground there taken was, that the court would not suffer its process to be examined by any other court; and that a court of law could know nothing of it. Some doubts having been suggested as to the accuracy of this report, I ordered the register's book to be searched, and I find that, though it does not contain precisely the same statement as is to be found in Vernon, yet it contains enough to satisfy me that the court thought it right to take the action into its own power. A later case, of May v. Hook, before Lord Bathurst, has since been mentioned, which was decided on the authority of the case in Vernon, and is directly in point. There an attachment was set aside; but the court would not permit an action to be brought, stating that if there was any reason to complain, the court would judge how such a case ought to be visited. If I can act upon that authority, so stated, it goes directly to the point in this case. But as this is a matter of great importance, I shall be obliged to the counsel if they will look into the register's book, and ascertain whether it is correct. It was mentioned that the entry in the register's book had been inspected, and that it agreed with the report in Dickens; upon which the Lord Chancellor made the order for the injunction, observing that though the jurisdiction was very strong, he was not at liberty to give it up.In that case the officer of the Court of Chancery had committed a wrong, under the sanction of the court; and Lord Eldon, admitting that it was a grave question whether the party should be deprived of his right to go before a jury for damages, yet felt himself bound to maintain the privilege of his own court, and so he did. A similar rule had been acted on in the cases of Bailey v. Durieux, 1 Vern. 269, and Andrew v. Walton, MS., January, 1834. In the case of the King v. Wheeler, 3 Burr. 1256, a person was committed for filing a bill in Chancery, after undertaking to abide the event of an award, and not to proceed in Chancery; and in the case of 44 Davilla v. Almanza, 1 Salk. 73, where a cause referred by consent, and, before the award, the party proceeded in Chancery, an attachment was granted. So the Court of Exchequer would not allow actions to be brought. The House of Lords had repeatedly stopped actions against its own officers The House of Lords would punish parties for the obstruction of their officers, and in the case of Biggs v. Hesse, November, 1768, Journals, vol. xxxii, p. 185 and 189, where action was brought by a person who had been apprehended by the defendant as a magistrate, for being in a mob insulting the Lords in Palace-yard. Biggs, the plaintiff, and Aytell his attorney, were committed by the Lords; and the House of Commons had exercised a like privilege. What course, then, did he recommend the House to adopt. He thought that they might well appoint a committee to inquire into the circumstances under which this party was arrested; if any wrong had been done, let compensation be given: it was just where there was apparent injury, and compensation should be called for, they should inquire, and that the House should give compensation. If their officers had done wrong, they had not done so designedly—they had faithfully executed the orders of the House; let the House inquire what injury had been done, and if there had been injury let there be compensation. The amount of damage was not the question—whether it were 100l. or 500l., was not a matter now for consideration; the House was bound to give compensation amptly, but they were bound also to maintain their own privileges. He had been aware only of this case for so short a time that he had not been able to collect the precedents so well as he could wish. The course they ought to take was clear—they ought never to have pleaded or to have sacrificed the privileges of the House, and now, when they were asked to plead again, let them take care. Let them look at the first general and vague declaration of Lord Ellenborough, and the more definite statement of Lord Denman. Let them look at what had taken place in the cause of Stockdale v. Hansard; the Legislature had decided that to be an essential privilege which the Court of Queen's Bench had declared not to be essential. Let them look at what had occurred; let them see what had been done, and be warned for the future. He regretted that this unimportant case should occupy the attention of the Government, when other matters of 45 such importance were pressing upon them; but they must consider that here they were not acting for the purposes of the day. They were about to make a precedent which would be of the greatest importance to the country. With unfeigned respect for his hon. and learned Friend (the Solicitor-general), he must say, that the course which he recommended was destructive of the independence of the House, derogatory to its dignity, and flinging impediments in its way upon future occasions. It was not fit that the House should vacilate in the course it should take ["Hear, hear.'] The right hon. Gentleman (Sir James Graham) smiled, but he did not conceive if they had adopted a principle in two or three cases contrary to the whole course of proceeding for centuries, that they ought not to be guided by the particular circumstances, and invite their attentive consideration to the course they should now take. He did not believe that they would be guilty of vacillation in deserting two or three recent cases if they were deserting bad precedents, and adopting those which were good. At any rate, he hoped that the House would not, by a hurried vote, reject the good.
§ Sir Robert Peel
did not rise to enter into the discussion upon that occasion, but to make a communication of which the House ought to be apprised. The hon. and learned Gentleman had regretted that more ample notice had not been given of the discussion, but the fact was, that notice of the declaration was only served on the Sergeant-at-Arms on Saturday last. The Sergeant-at-Arms had taken the earliest opportunity of bringing the matter to the notice of the House, and the Solicitor-general had thought it his duty to draw to it the attention of the House at the earliest moment. He had just received a communication to the following effect: that the period for pleading expired tomorrow morning, and that if it were the intention to take out a summons to ask for further time to plead, it was necessary that the summons should be served before nine o'clock that night. The Sergeant-at-Arms was most unwilling to take any steps without the- assent of the House; but, in consequence of the notice having been served on Saturday, the four days would expire to-morrow, and the Sergeant must at once determine whether he would plead or not, or he must ask for time to plead.
§ Sir R. Peel
said, that he thought that serving the summons for further time might, in some sort, operate as a recognition by the House of the power of the courts of law.
§ Sir T. Wilde
did not think that such a proceeding would be a recognition of the power of the courts. The summons and declaration had been served on Saturday, and four days being given to plead, as the House did not sit on Saturday, and Sunday intervened, it was not very difficult to see what was meant. But he did not conceive that applying for time to plead would be a recognition. The only condition, as his hon. and learned Friends knew, that was ever annexed to a grant of further time was, that the party should plead issuably and take a shorter notice of trial than he would otherwise have been entitled to.
§ The Solicitor General
agreed with the hon. and learned Gentleman (Sir T. Wilde) that applying for time gave up nothing, it was a mere matter of course.
§ Sir R. Peel
said, that he thought it had better be understood that the Sergeant-at-Arms should apply for further time to plead, as such a course compromised nothing.
Lord J. Russell
asked whether the right hon. Gentleman would propose to adjourn the debate for some day certain, or to give notice in some way, so that hon. Members might have time to consider the subject and make up their minds upon it? It was a question on which they ought not to be obliged to come to a decision which might have the effect of causing them to encounter those difficulties which had been described by his hon. and learned Friend, without having time for mature consideration.
§ Sir T. Wilde
said, that as the cause was a Middlesex one, it was impossible that the party could go to trial till after Easter term. The judge at chambers might, therefore, give a week or a fortnight, or even a month, as it would in reality be no delay to the party.
§ Sir R. Peel
said, that as it would be desirable the House should have an oppor- 47 tunity of considering the subject, he would propose that the debate be adjourned until Tuesday.
§ The Solicitor General
said, that it was probable neither he nor his hon. and learned Friend the Attorney-general would be in town on that day.
§ Debate adjourned until Thursday.