§ On the order of the Day for resuming the adjourned debate from Februrary 28th, on the question "that Sir William Gossett Knight, the Sergeant-at-Arms attending the House, have leave to appear and defend the action brought against him by Thomas Burton Howard for trespass,"
Lord John Rnssellsaid, that he was very unwilling to address the House upon a question of so much importance without the attention of the House having been called to its very great consequence; and, before he said anything, he begged that the second resolution, of the 30th May, 1837, might be read by the clerk.
The clerk read the following resolution:—
That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.
§ Lord John Russellcontiuued: if he rightly understood the course proposed by the hon. and learned Gentleman the Solicitor-general, in this case it was that after the House of Commons had come to the resolution which had been entered on its journals, "that to bring its privileges 976 into discussion, before any court elsewhere than in Parliament, and that "for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament is a breach and contempt of the privileges of Parliament;" after having passed that resolution, the House if he understood the hon. and learned Gentleman's proposal was not only to plead to the action commenced against the officers of the House for the execution of the 'orders of the House, but the House was to rest satisfied with the result of the proceeding, and was to allow persons acting in direct breach of the privileges of the House, and of the resolutions to which the House had come, to go on and to take no notice of the proceeding, or to consider it otherwise than as an ordinary matter. He thought that this statement alone showed the very great importance of this question, and he was sorry to say that the way in which the question was brought forward, and the state of the attendance that evening, showed that it hardly attracted that attention which its importance deserved. It might be right to take the course proposed by the hon. and learned Gentleman the Solicitor-general—it might be right to abandon to the courts of law the decision of the privileges of that House, but it could not be right to do so in this quiet and silent manner, leaving not only upon their journals the precedents of the best times of the constitution, but this latter resolution, that persons proceeding in the courts of law were acting in violation of the privileges, and would incur the censure of the House. He thought that this question should have been brought forward in a more solemn manner, and that the hon. Gentleman should have not only proposed to plead to the action, but that he should also have moved for the appointment of a select committee, or otherwise to have altered the resolutions which stood on their journals, or the mode of proceeding. There had been various cases in which the House had thought proper to plead. In the last case the plaintiff was the very person who was now proceeding against the Sergeant-at-Arms and the messenger. In that former case he had understood that his noble Friend (Lord Campbell), the late Attorney-general, had had a statement made to him, which was also communicated to the right hon. Gentleman now Lord Chancellor of Ireland (Sir E. Sugden), but who was then a Member of that House, that 977 proceeding was only for an excess in the execution of the orders of the House, and that the plaintiff therefore sued the person who had entered his House for damages. His hon. and learned Friend the Member for Worcester (Sir T. Wilde) had always contended that with respect to such cases the House ought always to keep its power within itself. He did not know that Lord Campbell went to that extent, but he made a proposal that the courts of law should decide the excess of damages. The present case, however, was of an entirely different nature, with respect to which neither he nor had the House, received any information to enable them to judge of the justness of the case. As he understood the statement of the Sergeant-at-Arms, it was that this was not a question of excess, or whether the warrant had been legally and duly executed, but whether the Sergeaut-at-arms, acting under the authority of the House, had power to place in custody the party suing; the plaintiff denying the authority of the House, sought for damages for the execution of the Speaker's warrant. If such were the case, there certainly were precedents for pleading. They had the case which had been referred to by his hon. and learned Friend (Sir Thomas Wilde), of Burdett v. Abbott, where the House had decided, although against the opinion of those best acquainted with the subject, among whom was the right hon. Gentleman the Member for Montgomeryshire (Mr. W. Wynn), that it was proper to plead. The advice given by Mr. Ponsonby, at that time a member of the House, was to plead, but, at the same time, to proceed against the plaintiff, and all the parties to the action. The statement of Mr. Ponsonby was, that he believed, that in olden time, the Speaker wrote a letter to the judge, in order to inform him judicially that this was a matter of privilege, and that the Sergeant-at-Arms, or officer, had acted under the orders of the House, and then, that the judge would have taken notice of the letter; but Mr. Ponsonby said, that the judges then sitting, would take no notice of the letter, but would proceed as if the letter had not been written. He believed, that whatever the proceedings might have been in the olden time, such would not now be the course of the Court of Queen's Bench. He believed, that if the Lord Chief Justice of the Queen's Bench, or any judge of any court, should receive a letter from the Speaker, stating that the commitment was by order of the 978 House, that letter would not receive any attention from the judge. That was hi belief, and that fact must be taken into consideration in the course they were about to take. Another case was brought before the House immediately after the resolution to which he had referred. That resolution was passed on the 30th of May, 1837, and on the 8th of June following, the Attorney-general proposed to the House to plead to the action which was commenced. He (Lord John Russell) did not wish to state the question unfairly either way. It was a question of great difficulty, and he would rather call the attention of the House to the difficulty than say that one 'course was evidently right, or that the other was evidently wrong. Eight days after the passing of that resolution, the Attorney-general having, by his desire, consulted several Members of the House, who were of the profession of the law, without any consideration of party, the House had pleaded to the action, on the principle that the courts of law could not otherwise be aware, unless formally and regularly informed, that this was a matter of privilege. If the House had not pleaded, the judge could not know that it was a matter of privilege. The judgment would be given for the plaintiff, and the proceeding would be the same as in a common action to which there was no defence. The right hon. Gentleman, now the First Lord of the Treasury, had then stated, that he was very sorry to find that such was the case; he did not know the technicalities of the courts of law, but he had hoped that it was not necessary to plead, and he considered, that the case of Burdett v. Abbott, so far from having laid down a precedent which ought to be followed, would be a precedent to show, that the House ought to be the judges of their own privileges: that this was part of the law of Parliament, and that they ought to proceed in similar cases without pleading in any court of law. In a subsequent case there was no pleading; judgment was allowed to be entered for the plaintiff. The jury had to assess the damages; and, in 1840, he had to propose the committal of all parties to the action, and the sheriffs, who held the amount of the damages in their hands. The right hon. Gentleman stated, that he regretted the course which had been pursued in the former case of pleading to the action; and that the House was in a false position from this pleading. However, these cases showed obviously 979 and clearly the difficulty in which the House was placed; because, having pleaded to the action, they were liable to the objection that they went to the courts of law—that they appeared before those courts to ask their decision, and that they ought to be bound by it. If, on the contrary, they had not pleaded, they would bring into trouble parties who, at the beginning, were entirely innocent of the intention of offending against the privileges of the House. He had thought it his duty to move for the commitment of these persons; still he could not but now feel how ill their privileges appeared before the public, when the House took this course against parties who were not in the first instance guilty. The position of the sheriffs was this—having been accustomed to obey the courts of law, being liable to a commitment by the Court of Queen's Bench if they had not made the levy, and paid over the money in eight days; and being threatened by the House of Commons, that if they did pay over the money, they would be liable to a commitment by the House of Commons, he believed that the sheriffs, not intending to offend either the House of Commons or the court of law, their obedience to the courts of law being usual, and the privileges of the House of Commons not being usual, that they took the not extraordinary course of paying obedience to the courts of law. He believed, that his hon. and learned Friend, the Member for Worcester, could not point out any course to avoid difficulties, or to free the House from difficulties, and embarrassing difficulties, if they now took the course pursued in former years. If they did not plead, of course the judgment would be against them, the damages would be assessed, the House would have to proceed to the committment of persons who assessed the damages; they might be kept for a certain term, the usual course would be to the end of the Session, and then they would be released. But would the House proceed next Session to imprison these parties again? What would be the state of public opinion if they did? Such were the difficulties if they resolved that they would not plead. He owned then that he saw great objection to the course recommended by his hon. and learned Friend. Still the matter they had to determine was, whether, instead of retaining the power of determining the existence and the extent of their own privileges, that should thereafter be transferred to the courts of law. 980 He could not see any other limit to the course in which they were now proceeding. It was said, to be sure, that as often as the courts of law were appealed to, they would respect the privileges of the House as part of the law of the land. No doubt, to a certain extent, they would support those privileges, just as they would support the magistrates sitting at quarter sessions and in petty sessions. No doubt the Queen's Bench would consider the privileges as established, if they were governed by law; but they would overrule the exercise, just as they exclusively determined the power of the magistrates at the quarter sessions, and the power of magistrates at petty sessions, and curbed and checked their excess, so would they think, at some time or other, of curbing and overruling the power of the House. But, setting aside for a moment the assumption by the House of Commons of the power of determining every question concerning its own privileges, what power did the higher courts exercise under similar circumstances? Let them take the Court of Chancery, and the decision of various judges with respect to actions brought against persons in courts of justice for matters resulting from the Court of Chancery. That court had stopped the actions; it issued injunctions with the intention of stopping them. This power of the Court of Chancery had been asserted by a succession of chancellors. It was asserted in the case of Lord Bathurst, it was asserted by Lord Eldon, and in a subsequent case by Lord Lyndhurst, and in another case again by Lord Brougham—all asserting the opinion of Lord Eldon, that although this was a strong power, it was one without which the court could not exist. With respect to the Court of Exchequer, its power to prevent actions being brought in the Queen's Bench had been asserted repeatedly. They had the elaborate judgment of the Chief Baron Eyre, and the reason which guided that judgment. They had also a similar assertion of this power by the Court of Exchequer in cases of revenue. But let them consider that the assertion of the privileges of the House of Commons was far more apparent than the powers of the Court of Queen's Bench, of the Courts of Chancery, or of the Exchequer. With respect to the Court of Chancery or of the Exchequer, the matter was little more or less than whether certain cases should be brought before particular judges. But the House ought to consider that the other House of Parlia- 981 ment was the check, and the only check, on the misconduct of the judges. They should therefore consider the advantage which would be gained by the courts of common law if they were able to over-rule the authority of the House of Commons, and to check the exertions of its privileges. His hon. Friend the Member for Finsbury (Mr. T. S. Duncombe) had proposed the other night to inquire into the conduct of one of the judges. The majority of the House of Commons had not thought that the grounds were sufficiently strong: but the majority might consider that the case was so strong of a mal-administration of justice, that it was necessary to direct an inquiry to be made, and to examine witnesses. With regard to the individuals who might be brought forward for examination, would it not be important that the House should be the judge of its own power? What would it be if one of the witnesses, in order to screen the judge, should prevaricate at the bar, and the House, in the exercise of its privileges, should, as it had often done, commit the witness? If they yielded their privileges to the courts of law it would be of great advantage to that judge: he might set that witness at liberty; he might say that the House had exercised its power unduly, and then the judges might be screened from the interference of the House. Therefore it was by no means a matter of light consequence on which they had to decide. Not only would the influence be lost in this particular case, and in others which might follow, but if the judges could thus proceed to enlarge their jurisdiction, and contract that of the House, the power of the House, so circumscribed, would not be of the utility it was destined to be. Let the House observe, that since the case of "Burdett v. Abbott," there had been a great increase of assumed power on the part of the courts of law. Let them look at the judgment of Lord Denman in the last case, and they would find that, so far from adhering to the precedents of former judges, the law, as declared by Sir W. Blackstone, by Chief Justice De Grey, and by Lord Camden, was to be considered only as dicta of no weight, or rather as proceeding from the well-known improper deference of those judges to the privileges of the House of Commons. They were told that one judge was a political partizan; that another, Lord Kenyon, had judged rashly and hastily; and that, instead of being obeyed, their judgments should be set aside as not 982 good precedents to be followed. If this were the case, he did not think that they could rely upon what had been decided in former times by the courts of law. The House should not imagine that they were quite safe because they could quote the judgments in the House of Lords upon the privileges or the judgments of learned judges recognising and approving of its privileges, and stating that of the extent of those privileges, of the question whether the warrant is formal or not, we (the Lords) are the judges, and the only judges, whether we have executed our own intentions. He did not think that any declaration of this kind would tell in favour of that House hereafter, if it determined in every case that came before it to take no notice of the parties and their proceedings, but to plead in the courts of law. Seeing all the difficulties in this case, without, he confessed, seeing any good way of avoiding them—seeing that they had not the power which the House of Lords exercised with such powerful effect, and, without contradiction, he was disposed to say that they ought not to allow the plaintiff in this action to be entirely free from examination, and such proceedings as this House may think it necessary to adopt. He believed that, when they examined with regard to other cases, the present plaintiff, who was then one of the accessories in carrying on these actions, one of the subordinate persons engaged in carrying on the trial, the House thought it necessary to commit him, first, to the custody of the Sergeant-at-Arms, and afterwards to Newgate. He now appeared in the character of plaintiff, and as he supposed, directly questioned the authority of the House. Would it not then be a very great retreat from the former position of the House, if when a subordinate they committed him, and now that he was a principal, they should take no notice of his breach of the privileges of the House? [Sir R. Peel: He was the principal when he last appeared at the bar.] He thought it had been another. He thought the present plaintiff was the son. [Sir R. Peel: No; it is the same plaintiff.] He was, therefore, inclined to say, that, their first proceeding ought to be to call this person to the Bar of the House, to inquire from him what was the ground of his action against Sir W. Gossett, and whether he proceeded, as it was stated he did in the former case, against some excess of the lawful authority of the House, or whether he questioned the validity of the warrant 983 and disputed altogether the authority of the House. It might he, and it was consonant with what had happened in other cases, that after hearing his statement, they should inform him that the proceeding which he had taken in this case was a breach of the privileges of the House, that he would then, as others had done who had appeared before that and the other House of Parliament, desist from any further proceeding. Even, if the House thought proper to plead, which he did not say they ought to determine against, he still was of opinion, if it appeared that the plaintiff in the action was proceeding against the authority or privileges of the House, that it would be right to commit him. In considering the various ways in which they might assert the privileges of the House—although there were some persons who would seek for notoriety in order that their damages might be increased by having been made the object of so much public attention—his opinion was, that by far the greater part of those who might wish to bring such actions would be deterred from doing so by such an exercise of the authority of the House. He did not exactly remember what had occurred in the case of Polack, which took place in 1839; but, he believed, that person asserted that he did not mean to offend or question the privileges of the House, and such he thought would be the usual course pursued in ninety-nine cases out of 100. The House would undoubtedly be subjected in those cases to the inconvenience, as at present, of debating and discussing the propriety of committing those persons—that was to say the plaintiff, and all the agents and parties in the action. But he owned that it did appear to him that very great embarrassments and very great perils would be found impending over the House, if they were to take the decided course of not defending their privileges, but of submitting them to courts of law. It might be that the right hon. Baronet at the head of the Government had in his mind some clear course by which those dangers would be avoided. The right hon. Baronet might satisfy himself that the privileges of the House could be maintained, although they did nothing more than plead. But even in that case, he thought it would be necessary, either by the appointment of a committee or some other mode, to get rid of their present resolution, and make an assertion of that extent and authority only which they meant to exercise. That would 984 place the House in a stronger position, although involving a retreat from its present resolution, than if, retaining that resolution, they declined to act up to it. Such were his impressions on the subject. He thought it was a question of too great importance to decide at once that the only course they would take would be to plead; and he therefore moved, "That Thomas Burton Howard be summoned to attend at the Bar of the House to-morrow."
The Attorney-Generalsaid, that the noble Lord had in a very fair and candid manner stated the difficulties and embarrassments that belonged to this question, and of these difficulties and embarrassments no one could entertain a deeper sense than he did. However unpopular it might be, he entirely adhered to the resolution which the House passed when this question was first submitted to their consideration. On that occasion he stated his opinion of the convincing argument which had been delivered to the House by the right hon. Baronet, at the head of the Government, and after the debates which then took place, he thought it scarcely possible for any constitutional lawyer to doubt the extent of the privileges which belonged to that House, or to doubt that the House was the sole judge of its own privileges; and if in any quarter, high or low, it was supposed that he had ever receded from that proposition, he begged to say that, such a supposition was founded altogether in mistake, and that he continued to adhere to the opinions which had been so ably expressed by his right hon. Friend upon the occasion he had alluded to. But the difference between the course which it now appeared expedient to adopt for the assertion of their privileges, and that which had been assented to by, he believed, a majority of the House, was, in his mind, a very grave question. He thought, then, and he thought still, that it was not becoming in the House to deal with the question by committing the plaintiff, still less by committing attorneys' clerks, and sheriffs' officers. In his view of the constitutional privileges of that House, there was no danger from any of those attacks that these privileges could be substantially assailed, and that the House possessed quite constitutional power within itself, whenever it was necessary to resent any injury done to its privileges, to assert them. He said, moreover, that the House of Commons, possessing this power within itself, should not adapt its conduct to that of the courts in Westminster-hall, who 985 were obliged to resort to commitment, because they had no other mode in which they could assert those rights. Before he presumed to state to the House the view which he took of this matter, and the course of proceeding that, in his humble opinion, ought to be adopted, he thought, perhaps, that the House would pardon him, if he said a few words with respect to the case of Howard v. Gossett. His hon. and learned Friend (Sir T. Wilde) he understood, had said in his absence, though in the most kindly spirit, that he had "surrendered the privileges of that House," in the mode by which he had conducted that case. He was sure, that his hon. and learned Friend would not make a charge in his absence, which he was not fully prepared to substantiate. His hon. and learned Friend, he was perfectly certain, would never, with respect to himself, whether he were present or absent, would never have even the remotest idea of making a charge, for which he did not believe that he had the most complete foundation; but he did think it right now to state that his hon. and learned Friend had created the impression to which he referred, by the statement, which on a former occasion had been made by him to the House. The only source he could have of hearing what had occurred during his absence in Lancaster was one from which he collected that his hon. and learned Friend had suggested that view of his proceeding to which he had just referred. Now, before the case alluded to had been tried, his hon. and learned Friend stated that he was disinclined to appear for the defendant, as he entertained views on the subject different from those entertained by himself. It was upon consultation that his hon. and learned Friend so expressed himself. The history of that case was very shortly this. When the action was brought of Howard v. Gossett, his noble Friend, the then Attorney-general, had imagined that the action was brought to determine the question of excess. And so it ultimately turned out. The action being brought, the plea as to the authority of the House was put upon the record. He believed that his hon. and learned Friend assented to that course on consultation. There was a demurrer to the plea, directly questioning the authority of the House. Then neither the late Attorney-general, nor his hon. and learned Friend came down to that House to state the condition of the pleadings; that it was not the excess that was to be tried; but that the direct authority of the House was 986 called into question. Undoubtedly his noble Friend the late Attorney-general had confined the complaint to the excess; but when it appeared that it was not the excess, but the authority of the House that was called in question: he thought the matter ought to have been submitted to the consideration of the House. His noble Friend, however, had taken the correct view of the subject. The plea undoubtedly was settled on consultation with his hon. and learned Friend, who was consulted upon the subject. This then was the state of matters when he succeeded to the conducting of the case. Down to the time of the argument on the demurrer his hon. and learned Friend had not withdrawn. [Sir Thomas Wilde: No, no.] Well, then, he was not quite certain on that point; but his hon. and learned Friend had continued his assistance down to the last moment, and he only withdrew three or four days before the case came on to be argued. A doubt was suggested by the Court, as to whether they, for the defendants, had correctly placed the matter before the Court, so as to entitle them to its judgment. The Court offered them time to amend. The consequence was, that when the case came on, Lord Denman distinctly told the jury, that the authority of the House was admitted by the plaintiff. That was not an unimportant consideration for them, when deliberating upon the course which the House ought now to adopt. He then turned to the point of fact, and what was then proved? The defendants had gone to the House of the plaintiff Howard—they had searched the house from the top to the bottom. They were apparently taken to every possible place where the plaintiff could have been concealed. It appeared to be that the intention was to take them through the House, in order that the party might have a larger claim for damages. It appeared that the plaintiff was not in any part of the house, and the officers remained from nine o'clock until a late hour, and the plaintiff never returned. In the mean time, Mrs. Howard having some visitors, the continuance of the officers in the house was felt to be a grievance—they, too, remaining there for the purpose of arresting Mr. Howard: and thus it might be said converting Howard's own house into a trap to catch him. The opinion was taken of a gentleman of the bar; he declared that they had no right to remain there, and that if they did not leave they should be given into the custody of the policeman. This opinion was stated to the officers; they 987 made a communication to some person, and they were advised that if their proceedings were not absolutely illegal, still it would be better for them to withdraw. Accordingly, they did, between one and two o'clock in the morning, withdraw. So the pleadings stated, and when he went into court to defend the case, he found that the first question to be determined was, whether the officers, under the warrant of that House, were justified in remaining in the dwelling of the plaintiff. He found there was no difference of opinion amongst the profession. In any other case, no lawyer could have a doubt. It could not be supposed possible that a person having a warrant, and going to a man's house to arrest him, and not finding him there, could have a right to remain in that house till he returned, it might be for hours, or for days, or for weeks, or for months. For any man to say that that was the law, would show but little experience, but little knowledge of the protection which the law gave to a man's residence, as his castle. When he found, then, that that was the state of the case, it appeared to him to be impossible not to admit that what the officers had done, whatever was their authority, had made them trespassers. Lord Denman distinctly laid down this proposition of law—that the officers were not justified. He emphatically told the jury that the matter they had to try was not the authority of the House, for that was covered by the pleadings-—that the authority of no court could justify the officers in remaining in a man's house until he returned to it. He had suggested, as his opinion, that this was the law, as applicable to the case. He felt bound to state what was the result of his consideration of this matter, and it was that no question could arise on the validity of the warrant. He understood that the statement of his hon. and learned Friend the other night was, not that he had abandoned the rights of the House of Commons, in allowing a question as to the validity of the warrant—the effect of what he had done, was, to use the expression of his hon. and learned Friend, that he had surrendered their rights in allowing a verdict to be given on a state of facts, which, if they believed the evidence, it was impossible for any man to justify, namely, that parties could, under a warrant of that House, go to any man's house, and remain there till he returned. It would, he confessed, have been more satisfactory to him, if he could have had the assistance of his 988 hon. and learned Friend to the last moment. He admitted that his hon. and learned Friend had withdrawn from the case from a sense of delicacy, which it was impossible for them not to sympathise with. His hon. and learned Friend withdrew from a public appearance in the cause; and he did so only at the last moment. He had stated so much of the history of that case, and he now came to this, which related to an action brought, because it was supposed that excess had been committed. As to the question immediately before the House, the Solicitor-general had proposed that the House should plead to the action. The noble Lord opposite had suggested on the other side, that they should, before the House permitted a plea to be filed, call the plaintiff before them, in order that he might state what was his object in bringing the action. There was, however, no occasion for bringing the plaintiff to the Bar of the House, for the purpose of knowing what was his object. He would state to the noble Lord at once what he believed would be done. The object of bringing the action was to get as much money from the officers of the House as could he obtained; and if the plaintiff were brought to the Bar, and from thence sent to prison, the damages would be increased. And when the plaintiff came there, they might rely upon it, that he would be as insulting to the House as he possibly could be, for the purpose of provoking a committal. The noble Lord might depend upon it, that the plaintiff would so conduct himself as to appear to be the martyr of those, which many considered as the oppressive and tyrannical privileges of the House of Commons. In Howard v. Gossett, the then Attorney-general observed, that the action was brought for excess. No such thing occurred in the case of Burdett v. Abbott. It was avowed from the beginning by Sir Francis Burdett, that it was his object to try whether the House had the right to send him to the Tower. Let them suppose, then, that the plaintiff was brought there, why should they treat him differently from a Member of their own House? He had now to call their attention to what had occurred in that case. The late Attorney-general, in a very able and elaborate argument, of which it would be scarcely possible to speak too highly, observed, that from the time of the Revolution down to the case of Burdett, no action had been brought directly impeaching the privileges 989 of the House. On that case the matter was referred to a select committee: that committee was composed of the first men of the day, of the most eminent constitutional lawyers. To the report that was then made, he begged to call the attention of the House. They say—
And it appears, that in the several instances of actions commenced in breach of the 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 actions. 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 appeared 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 plead to the same, for the purpose of bringing under the knowledge of the courts 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."*According to the report of that committee, he said that whatever answer might be given to the plaintiff, the same course ought to be adopted with respect to the plea. The letter of Sir Francis Burdett was directed against the authority of that House in committing to prison Mr. Gale Jones. It was not written, as his hon. and learned Friend supposed, against the corrupt constitution of the House. Then there was a committee appointed, when it was avowed by Sir Francis Burdett that he brought his action for the purpose of disputing the right of that House to commit at all. But then the noble Lord said, why did they not commit this man—he said the House had not committed Sir Francis Burdett. On the 8th of June, 1810, his right hon. Friend the Member for Montgomeryshire proposed the following resolutions:—That whoever shall presume to commence* See Hansard, vol. xvii. Appendix, p, 90.990or prosecute any action, indictment, or prosecution, against any person for acts done in obedience to the orders of this House, such person and persons, and all attorneys, solicitors, counsellors, and sergeants-at-law, soliciting, prosecuting, or pleading in any such case, are guilty of a high breach of the privilege of this House. That it appears to this House that the actions commenced by Sir Francis Burdett, Bart., against the right hon. Charles Abbott, Speaker of this House, and against Francis John Colman, Esq., Serjeant-at-Arms, attending this House, are for acts done in obedience to the orders of this House. That the proper officer of the Court of King's Bench do to-morrow attend this House, with all records and proceedings in the said actions."*The proposition for taking those resolutions into consideration was negatived by a majority of 74 to 14. The case was carried to the House of Lords. They let it go there, and Sir F. Burdett was not, on that account, sent by them to the Tower. They permitted one of their Members to go to the Lords, and he believed that Lord Brougham was one of the counsel. When one of their Members defied their privileges, and brought his action, they pleaded—they let that Member go to the House of Lords—they permitted him to vote in that House, and to sit as a Member. How, then, having thus acted with one of their Members, could they consider that they had a right to call before them the plaintiff Howard, and send him to prison, for which he would be glad to get 100l. from them? With what propriety could the House introduce now a different practice, after thirty years submitting to a different state of things, and what advantage could arise to them from their impolicy and want of wisdom, in doing that which this man most desired, that he might bring the matter before a jury, and thus entitle himself to greater damages? He had now to call their attention to the observations made by Members, on the occasion to which he had before referred; but. before he did so, he wished to remark, that it was proposed, in pursuance of the report of the special committee, that they should plead. That question was carried nemine contradicente, and not even his right hon. Friend the Member for Montgomeryshire, who then had a seat in that House, lifted his voice against it. Perhaps it might be said, that was not a fit course to be adopted. In 1810 it was unanimously adopted, and now he wished to call their attention to the expressions* Ibid. vol. xviiߞ p. 520.991 used by Mr. Ponsonby, who had filled the the office of Lord Chancellor in Ireland, and who was considered as the champion on the privilege question. This was what he said:—The next queston to be considered was, the peculiar situation in which the Speaker of that House was at present placed. To many Members it appeared a most monstrous novelty, that the Speaker of the House of Commons should be obliged to appear in one of the courts below, for an act which he had done in pursuance of the orders of that House. A novel proceeding it certainly was, for which there was no precedent; as to an action brought against the Speaker, the instances were rare. Yet, monstrous as it appeared to some, and novel as it must seem to all, it was his firm persuasion that the Speaker ought to appear and put in his plea to the action. Such course was open to him, without the slightest apprehension of his surrendering, in the remotest degree, the privileges of that House; and such course the House could adopt, although it had determined to commit the solicitor." *This, then, was the opinion of a most distinguished Member of that House, in a most elaborate, enlightened, and argumentative speech on the subject of privilege. It was Mr. Ponsonby who had most distinctly stated that their Speaker (and he prayed of the House to mark the distinctinction)—that the Speaker, he who was their highest authority, their public representative, if he might say so—and who had an action brought against him by one of the Members of the House; yet Mr. Ponsonby said, that in his opinion the Speaker might plead, and yet they not be under the slightest apprehension of his thus surrendering the privileges of the House in the least degree. And yet his hon. and learned Friend would not have them plead in Howard v. Gossett, as the House might lose its place in the Constitution by following that example. But Mr. Ponsonby went on to say—For himself he would say, that if such a proceeding had occurred when he had the honour of holding the great seal in Ireland, he would have certainly felt it his bounden duty, under the jurisdiction of his own court, to commit the solicitor, and to appear in the court of law to put in his plea; for, unless such a course was adopted, how was it possible for the courts below to be apprized of the nature of the case? How was it possible for them to inform themselves of those facts, without the knowledge of which they could not know whether the injury complained of was committed in a private or public capacity?* Hansard, vol. xvi. p. 989.992With respect to that House agreeing to resolutions in the shape of prohibitions to the courts of law not to entertain causes in which its privileges were involved, such a course was a complete novelty, on which he could not be expected decidedly to pronounce, inasmuch as in his whole course of reading and of practice he had never met with such a precedent? It was necessary that the courts should be informed of the nature of the proceeding. The difficulty was, as to the manner of making the communication. Should the Speaker write? If he did so, and were he (Mr. Ponsonby), a judge presiding in the court wherein the process was instituted, without meaning any personal disrespect to the Speaker, he would most certainly take no notice of the letter, nor treat it in that court with the smallest respect.Here, then, was the speech of a strenuous advocate for their privileges, advising them, in fact, to put a plea upon the records of the courts. In those observations Mr. Ponsonby made a prophecy which was afterwards realised. An attorney brought an action against Lord Brougham for false imprisonment, in committing him for contempt. The action was tried before Lord Lyndhurst, then Chief Baron of the Exchequer. It was conducted by Mr. Platt, and he believed Mr. Solicitor-general and the late Attorney-general conducted the case for Lord Brougham. When the case had been opened, Lord Eldon was called as a witness, to prove the practice of the Court of Chancery, and to show that Lord Brougham had been mistaken as to that practice. Lord Eldon was asked if he had ever committed any one, without giving him a certain notice. The answer of Lord Eldon was,—If I did so, I have no doubt I committed a mistake.Sir Wm. Home, too, was also called to prove what had been the practice. Lord Lyndhurst then laid down the law, that for an act done by Lord Brougham in his judicial capacity he could not be made responsible. Lord Brougham did not commit the plaintiff in that case for taking his action—he took no such step, but he pleaded, and he did not think of avenging his insulted dignity by a commitment. He should presently call the attention of the House to the case referred to by his hon. and learned Friend, and as to the power of the Court of Chancery to commit, and the manner in which it exercised that power. Before, however, he concluded this part of the subject, he wished to direct their attention to the opinions expressed in the discussion he had referred 993 to, by Sir Vicary Gibbs, by the then Prime Minister, who had filled the two great offices of Attorney and Solicitor-general, of Sir Thomas Plumer, and also of Sir Samuel Romilly, and who opposed every course but that which would bring the question to be fairly tried before a court of law. That case was a much stronger one than the present; for there an action was brought by a Member of that House against their Speaker. Here it was only an action brought by a subject, who did not owe to them that deference and obedience to be required from a Member of the House, and which the Member was bound to show. And here, too, the action was brought not against the Speaker, but the servants of the House. From the time of Burdett v. Abbott, he was not aware that any case had occurred which could throw any light on this subject, or that was to be regarded as an authority, one way or another. But what had been the course taken, when Stockdale had brought his action? As to the first action, he was not certain that the House had been made aware of it. He rather thought that Mr. Hansard had pleaded to it, without any communication with the House. The result of that action was instructive. The pleas were the general issue, and justifying the libel, by alleging that the publication was infamous and obscene, such as it had been described in the paper laid on the Table of the House. The result of the case was, that Lord Denman was opposed to the views of the then Attorney-general on the general issue. He directed the jury to reject from their consideration every topic arising out of the authority of that House; but the jury looking to the justification, found for the defendant, and declared that the work impugned had the character attributed to it by the publication. In the meantime, the somewhat extraordinary language of Lord Denman had attracted the attention of the House. And then Stockdale brought another action, and the court then gave judgment against the defendants. His opinion at that time was, that a better course for them to have taken, would have been either to have gone upon the record to the House of Lords, or at all events to have exhausted the opinion of every other court of law, or at once to have legislated upon it. His hon. and learned Friend, the Member for Worcester, would do him the justice to state, that as soon as ever the judgment was pronounced, and when his 994 hon. and learned Friend thought they had a right to stop all those proceedings, by committing the plaintiff, the sheriffs, clerks, and others, he said that was not the right course; but that he ought to take up the case to the House of Lords, and to teach the judges, not by committing clerks or officers, but by legislating. The effect, however, of that action was, that the jury assessed the damages, and gave 6001. Why, could that House—could any Member of that House, be ignorant of the grounds on which that had been done? In the meantime, they had proceeded with their committals, and had adopted a course which was not in accordance with the general feeling out of doors. And he believed that no statesman would differ from the expression which he found at the conclusion of Mr. Ponsonby's speech, and also at the conclusion of Sir Samuel Romilly's observations, that nothing could be more to be deprecated than anything like a collision between that House and the general sense of the community, as the course to be adopted for the vindication of their privileges. Mr. Ponsonby said he never could think anything half so unfortunate as that any considerable portion of the people should disapprove of their proceedings. It was quite plain, however, that on that occasion—Stockdale's second action—the House had adopted a course which aggravated the evil. They all knew, that in the speech which his hon. and learned Friend had delivered—a speech that was admirable in every sense, and that never in talent could be surpassed—they all knew that in that speech his hon. and learned Friend had said, that persons would get tired of going to prison at last. His hon. and learned Friend would commit right and left, plaintiffs, attorneys, and he would not even spare the barristers. But did not the late Member for Ripon (Sir Edward Sugden), whose absence from that House they all must deplore, did he not say, that they might fill the gaols, but they could not exhaust the spirit of opposition to their course of proceedings, and which was rising day by day into continued action? And did not, too, the Member for Ripon declare that there was not a barrister in Westminster-hall, who was not ready to go into gaol, or into custody, rather than submit to their unjust assumption of power? But then, in vindication of the privileges of that House, the hon. and learned Member for Worcester at last said, that they must call upon the Secretary of State to bring 995 out the Guards to oppose the sheriff and the posse comitatus, so that the question was likely to end in something like an appeal to a civil war in this country. Was this a state of things on which the House was disposed to enter, without the direst and the most stringent necessity? Having, then, the case of Burdett v. Abbott, and Burdett v. Colman—having a course laid down for thirty-two years, were they now in this case to depart from established precedents, because, as the hon. and learned Member for Worcester said, if they did not, they were in danger of losing their place in the constitution? He agreed with one portion of the House in theory, but he differed from that portion in practice, and he expressed his opinions with great deference and respect for them; but the view he took of the subject was this, that they ought not to condescend to take the course adopted by courts of law, who adopted that because they had no other means of vindicating their authority. Was it not, he asked, fitter for that House to wait until they had some great occasion. His hon. and learned Friend thought that this was that great occasion; but were they to do that, they would be playing the game of the party opposed to them. That party wanted to make a profit out of a supposed grievance—having brought an action, that party wished something might be done which he might hold out as a wrong. In his view they ought not to do that. But then it was said that they ought to adopt a course, which the Court of Chancery, he admitted, on some occasions, did adopt; but then the Court of Chancery adopted it because that court had no other course to take. He begged to call the attention of the House to the reason why the Court of Chancery took that sort of jurisdiction, and he would here give his hon. and learned Friend the full benefit of the case of Anstruther, and the whole series of cases from it, in Burns, and Bailey and Devereux, down to the last case, which occurred so lately as the year 1831—Philipp and Worth, in 2d Russell and Milne, N. 638. His hon. and learned Friend had said that the Court of Chancery took this matter of jurisdiction into its own hands, and then, if one complained of excess, the court would not allow him to bring his action, but said he must come before the court, and the court would award him damages. He did not mean to take the Court of Chancery as a model in any respect. He said this, not meaning any disrespect to that court, 996 but every lawyer must recollect the saying of Lord Eldon, that he did not know how the Court of Chancery had got jurisdiction. Now a jurisdiction, the origin of which was not known to the judge who exercised it, was not such a model that, in his opinion, the House of Commons should adopt. In the case laid down, Philipp and Worth, the parties had applied to the court to be discharged. Then the court declared that when the party came to be discharged, they would have the whole matter of jurisdiction before them. In the first case referred to the other night by his hon. and learned Friend, Bailey and Devereux, 1st Vernon, p. 269, the Chancellor laid it down, that the irregularity committed ought to be punished in that court, and that then the matter could be examined into and determined. The same principle was acted upon in Proud and Lawrence. Then in the last case, in 1831, it was declared that upon the party submitting, a reference should be made to the master as to the compensation that was to be made. The master there was then to determine what damages were to be awarded to a man who complained of a wrong. The Court of Chancery was open at all times—the other courts, too, were renewed from time to time—but how was this court, a branch of the High Court of Parliament, to administer justice in the same way? They could not administer an oath—they had not officers—they had not the machinery to carry this on—they could not adopt the practice of the courts of justice, because they had not the means of doing justice here. In the case of Anstruther, which the noble Lord had referred to, it was said that the Court of Exchequer would not allow to be removed into another court an action brought against an officer of excise. He remembered perfectly well the Lord Chief Baron who tried the case declaring that they would not say one thing and mean another—they did not say that in removing the action into the Court of Exchequer, they could stop him elsewhere; but in telling the plaintiff not to go on, upon pain of imprisonment if he did go on, they had not the means of preventing him. Those then were the matters which induced his hon. and learned Friend to oppose the proposition for the defendant pleading. He did not agree in that opinion, nor in the proposition of the noble Lord, that the plaintiff should be called before them, and asked some questions, 997 when it appeared to him that would only give the plaintiff the opportunity of insulting that House, and thus bringing down upon him the visitation of that punishment which he was anxious to receive. He took a much higher ground, and one that he thought more becoming in that House, while at the same time he secured that justice which his hon. and learned Friend professed his desire to have done. He said that the only reason why the different courts adopted at once the practice of commitment was, because they had no other method of vindicating their jurisdiction, and because they possessed no other power. If those courts did not commit, they could do nothing. That was not the case with this House. He should not then enter into an examination as to the powers which the House might exert on extraordinary occasions. It could vindicate its high authority and its constitutional rights. This was his opinion, and so must it be of every man who looked at the history of the country, and not the least part of it—the last ten years in which they had lived; and he must see that this House, if it were possessed of the good opinion and sanction of the people, had ample powers for the vindication of its privileges and the necessary discharge of its public duties; and it did not want to share in the paltry, petty power of committing here and there, and punishing, if they pleased. He did not ask them to establish their authority by these means. If they wanted to teach the judges what was the law, if those judges forgot what was due to the law, let them, he said, teach them by act of Parliament, and let them not commit their officers, and let them not commit their sheriffs, or other persons. He might be wrong in the views that he entertained on this subject; but finding he could not join with a great portion of that House—he did not say party, for this was not a party question—but finding he could not take part with either portion of the House; but as he could not abandon the right hon. Baronet's propositions as to what were their undoubted privileges, and as he could not go with the then majority in committing various persons to prison, for that which was called a breach of their privileges; he, therefore, took but little part in these discussions, until his hon. and learned Friend had called upon him for an explanation of his views. Under these circumstances, he submitted what were his views as to that course which he considered the most con- 998 sistent with their dignity—their true dignity. He thought the course most consistent with that dignity was to plead to the action. He thought they should have adhered to their former course, and not to have departed from it, as he considered, indiscreetly and unwisely, and contrary to precedent. It would not, he believed, be for the advantage of the House—it did not belong to its high position, to adopt practices that did not properly belong to it. The true mode of consulting their true dignity was by pleading to the action, and not by calling the plaintiff to the Bar, in order that the House might be put into a situation which that plaintiff desired, for the purpose of insulting it, and endeavouring to get damages by misrepresenting the course they had pursued. On these grounds he should feel it to be his duty to vote against the proposition of the noble Lord.
§ Mr. Elphinstonethought that the high court of Parliament had, and ought to exercise an exclusive jurisdiction. With regard to matters of trust, the Court of Chancery had exclusive jurisdiction, and had not allowed the Court of Queen's Bench or any other court to interfere with its jurisdiction. In the same way the Court of Admiralty, in questions of "prize or no prize," allowed no interference. It was the same in the Scotch courts. He was ready to allow that some of these courts had exercised their privilege in a convenient manner, and some in an inconvenient one. The hon. and learned Gentleman cited the case of "Sedgwick and Redmond," reported in Carey's Reports, 56, in support of the doctrine of the exercise of exclusive jurisdiction by the Court of Chancery. In the case of "Angel v. Smith," reported in 9 Vessy, which was an action of ejectment against a receiver of the Court of Chancery, the receiver applied to the court to restrain the action, and Lord Eldon said—"An ejectment at law cannot be brought, and shall not be brought, without the leave of the court." A similar doctrine was held in the Irish case of "Batchelor v. Blake." In "Cheeney v. Pickering," reported in I Keen, where an irregularity had been committed by an officer of the Court of Chancery, that court would not allow an action at law to be commenced against the officer. In "Bricknell v. Stamford," reported in I Beavan, where a party who had been imprisoned for a day brought an action at law for false imprisonment, t 999 Court of Chancery restrained the action. There were also some cases in the House of Lords which he thought in point. One of these was when Lord Camden was Chancellor, in the year 1768, and was called Biggs's case. It was reported in the 32nd volume of the Lords' journals. The House was informed of an action prosecuted in the Common Pleas by one John Biggs against a Mr. Hesse, a justice of the peace of Westminster, for acting under the immediate order of the House of Lords. The next day Mr. Hesse was required to attend the House and make his statement, and afterwards Biggs was called to the Bar of the House, reprimanded by the Lord Chancellor, and desired to stop all further proceedings at law, and was only discharged out of custody on signing a release to the action. Two other cases in point were those of Hyde, a person who attempted to get into the House of Lords without a ticket, and resisted the officer of the House in the execution of his duty; and that of a man who lost his umbrella in the lobby of the House of Lords, and proceeded against the messenger for the recovery of its value. In both cases the House exercised its exclusive authority, and protected their officers. Again, would the Court of Queen's Bench interfere with the authority of the Court of Admiralty, or any of the English courts, with the courts Scotland, if their officers did wrong? All the courts were the sole judges of their own proceedings, and of the way in which their processes should be executed. He should be ready to agree to the proposition of the Solicitor-general, if it would tend to prevent these cases being tried in the courts of the Westminster-hall. Suppose the plaintiff were to limit his case to the Sheriffs' Court; or suppose he had gone away to some colony where the Dutch law prevailed, and he had been taken there by an officer of the House, it would be a very awkward thing for the Sergeant-at-Arms to come to them and claim protection. The first plan which it would be best for the House now to pursue was to adopt the proposition of the noble Lord (Lord J. Russell), to summon the plaintiff to the Bar of the House, and inform him that the House would consider it a high breach of their privileges if he proceeded; but it would be still better if a bill were passed authorising the Speakers of both Houses to issue their writ of injunction to 1000 restrain and stay proceedings in the courts below.
§ Mr. Borthwickthought the hon. and learned Gentleman had failed to answer the Attorney-General, notwithstanding the number of cases he had cited. Perhaps it would be most advisable to follow the course pointed out by the Attorney-General; but then there was this intolerable inconvenience in the practice of it,—the House would, from time to time, be called into courts of law to pay sums of money in the shape of fines for doing their duty to the people. An end must be put to that before the House could exercise its functions with satisfaction to itself or advantage to the people. The state of the case left him no alternative but to vote with the Solicitor-general. He hoped the House would assert no privilege which the Court of Queen's Bench was not ready to confirm and establish by its decision. If that should not be the case, then would come the time for the passing of some declaratory act which should define the privileges of the House and teach the judges of the land what course to adopt. Nothing could look more like "breaking flies upon a wheel," nor be more undignified, than the punishing persons so as to make them be regarded as martyrs, and to give them an appearance of claim for compensation. The House should avoid such committals. He should vote with the Solicitor-general, in the hope that the result of the present proceedings would lead to the passing of an act which would put an end to the present most dangerous practices.
§ Sir R. PeelAs there seems to be no disposition on the part of the professional Members of the House to continue the discussion, I will avail myself of this opportunity to state my general views with respect to the course which it is advisable for the House to pursue on the present occasion. The noble Lord the Member for London intimated an opinion that it might have been desirable to appoint a select committee to consider the facts of the case, and the precedents bearing on them. I have so much respect for the opinion of the noble Lord, and am so firmly convinced of his desire to maintain intact the privileges of this House—a desire in which I cordially concur—that if the noble Lord had thrown out that suggestion at an earlier period, I should have been disposed to receive it with the deference 1001 which is due to the noble Lord's position and ability; and if I had thought that the appointment of a committee would have led to a beneficial result, I would have cheerfully acquiesced in that course. I have great doubt whether any advantage would now arise from the appointment of a committee. Considering that the most eminent persons on each side of the House have expressed such strong opinions with reference to this question, I am afraid that if a committee should be composed of those who have principally directed their attention to the matter, the only result would be to exhibit to the House and the country the great extent of the difference of opinion which prevails regarding it. The subject was almost exhausted by the committee which was appointed in the case of Burdett v. Abbott. In latter times—in the case of Stockdale v. Hansard—a committee was appointed, and I believe that all the precedents bearing on the question are recorded in the reports and evidence of that committee, and, therefore, I doubt whether any practical good could result from the appointment of a fresh committee. The questions which would devolve upon a committee for consideration would be, whether the House should plead, whether it should refuse to plead, or whether, in conjunction with pleading, the House should commit the party to prison by its own act. I think that all the various arguments which can be urged in favour of one or other of these courses, are as familiar to the minds of those whose attention has been directed to the subject, as they would be if the House were to appoint a select committee, and therefore I think that whilst we should devolve great responsibility on a committee so appointed, we, at the same time, should derive no practical advantage from it. I and the other Members of the Government thought it right to take upon ourselves the responsibility of recommending the House to adopt the course which, on the whole, appeared best. It would have been more convenient for us to invite the aid of a select committee, but we thought it was our duty as a Government to follow the example of former Governments, and, in a case of great difficulty and embarrassment, to submit to the House, through the organ of our legal advisers, the course which we considered it most advisable to pursue. We preferred coming forward with a substantive proposition, to shelter- 1002 ing ourselves under the authority of a select committee; and I am induced to think, that those who consider the course which such a committee must have taken, will think, that we exercised a sound discretion on that point. As I before observed, the House has it in its power either to refuse to plead, or to plead as my hon. and learned Friend proposes, or to plead and, at the same time, to commit the plaintiff to the action. The inclination of my mind, when the subject was first brought under the consideration of the House, was to refuse to plead. When a similar question was before the House in a former Session, I expressed my regret, that the late Attorney-general (Sir J. Campbell) should, within a month after the adoption of the resolution to which the House came upon the report of the select committee, in the month of May, 1840,I believe, have found it necessary to submit the privileges of this House to the jurisdiction of a court of law. It is my firm opinion, that if we had then, relying on the authority of Burdett v. Abbott, in which case the court of law distinctly declared that this House was the judge of its own privileges, exhibited an unanimous feeling to maintain our own authority, and claimed the right of deciding upon our own privileges, the general opinion of the House would have overborne all opposition, and we should have successfully vindicated our privileges. But, at the same time, it must be borne in mind, that we are a popular assembly, and it is easy to find objections to any practical course which may be taken with respect to a subject so surrounded with difficulties. Depend upon it, that in cases of this kind, those who are responsible for the proceedings of this House, who are desirous of supporting its dignity and maintaining its just authority have a most difficult task to perform. It is very different with an individual Member of Parliament, he can give his vote and escape from all responsibility. Though I regretted the decision to which the late Attorney-general came, and disapproved of the course which he recommended the House to pursue, yet when he stated all the difficulties of the case, I, being aware of his sincere desire to uphold the authority of the House, did not feel disposed either to censure or oppose him. The late Attorney-general stated, that there was no other way in which a court of law 1003 could know, that the privileges of the House were called in question, except by the House pleading, and he and the Government of which he was the legal organ, recommended the House to plead to the jurisdiction of the court of law, in the case of Stockdale v. Hansard. The late Attorney-general had looked to all the authorities; he was a most powerful advocate of our privileges in the courts of law, and yet he came to the conclusion, that on the whole, the most advisable course was to enter a plea to the action. Having taken that course in recent times—having acted on the precedent established in the case of Burdett v. Abbott, it appears to me that the House cannot with propriety pursue a different course now. The almost uniform current of precedents is in favour of pleading—there is scarcely a single departure from it. If we do not proceed the action proceeds, and damages will be levied. Then we should have a most painful duty to perform. Nothing is more repugnant to my feelings than to order the damages awarded by a court of law to be paid out of the public Treasury, in order to prevent their being levied from the officers of the House of Commons. There is, however, no alternative; if we refuse to plead, the action proceeds, and we shall be compelled to follow the course which we adopted before—a painful and difficult course—in the face of a powerful minority—of committing to prison innocent men, for obeying the laws of the land, and the decrees of courts of justice. It is impossible not to feel that this is a most painful position for the House to be placed in. The persons in question do but perform their duty in obeying the orders of the courts of law, to which they are immediately responsible. I am sure, that even those who are most strenuous in maintaining the privileges of the House, must admit that we discharge a painful duty when we commit innocent men for taking the course which they conscientiously believe to be right between two conflicting authorities. If the House should determine upon entering on that course, it appears to me that it should not content itself with committing to prison the inferior agents and instruments of justice—it will have no alternative but to commit those who give the orders to these instruments. But, after all, our authority is limited to the period of the Session. It is most defective in that respect. During 1004 the recess, the House has no power of committal. If we imprison the sheriff", he is liberated when the Session closes, and the House can do nothing until it meets again, when, after the lapse of several months, during which time will have produced the usual effect in cooling the feelings of indignation which originally actuated us, we may be called upon again to commit parties, who have done nothing more than what they conceived to be their duty, in obeying the jurisdiction of a court of law. I, for one, after the precedents which we have ourselves established—knowing that the privileges of the House of Commons, like all other jurisdiction in a free country, mainly depend on public opinion—knowing that the exercise of power against public opinion, in a free country, is always comparatively weak, and seeing that in the great conflict of parties, the committal of innocent persons by various majorities of ten or twelve—will not be sanctioned by public opinion, I must say, that these circumstances do practically limit the exercise of the power of this House. When you are unanimous, you may go against public opinion, but when you are divided you cannot safely venture to take that course. Were I acting as an individual Member of Parliament, I could take what course I pleased; but having the responsibility imposed on me of considering what, under the circumstances, it is best to do for the House of Commons, what is best for the public peace—what is best for the interests of the country—I cannot advise that we should act contrary to the established precedents, and refuse to plead. I therefore concur in the proposition, that we state to the Court of Queen's Bench that the acts complained of by the plaintiff were done by our authority. When the noble Lord (the Member for London) was in office—when he, acting under the responsibility of a Minister, considered what was best to be done, he actually came to the same conclusion to which I came on the advice of the late Attorney-general, and upon the whole, notwithstanding all that had passed, seeing the conflict of opinion in this House, thought it advisable to act on the precedents of Burdett v. Abbott, and Stockdale v. Hansard, recommended that the House should also plead in the case of Howard v. Gossett. When I say that I am ready to plead, I conceal from 1005 myself none of the difficulties in which that course may involve us. No man can feel a deeper conviction than I feel that all the privileges to which this House has laid claim in modern times, for printing by the Speaker's command, for the attendance of witnesses, for the right to commit for contempt, for the right to command persons into custody, even without their having previously committed a contempt, are essential to the due discharge of our functions. I think that the possession of those privileges goes to the essence of our power of rendering public service. I go the whole length of saying that cases might arise in which it would be necessary to commit persons who had been guilty of no previous contempt or breach of privilege. Take the case of the impeachment of a Minister for gross misconduct. The House has reason to believe that a witness, whose evidence would be most important to establish the charge, is about to depart for a foreign country. I do not hesitate to say that though that person should have received no warrant directing him to attend the House—though he be chargeable with no contempt—though he have done no act which could subject him to the censure of the House, yet, under the circumstances, I claim for the Speaker of the House of Commons the right of bringing that man in custody to the bar. I believe the possession of that power to be absolutely essential to the performance of the functions which belong to us as the great council of the nation. If the decision of any court of law should endanger the privileges to which I have alluded, no one would be more ready than myself to contend that some course should be taken which would put us in full possession of them. I am now pointing at the difficulties which I always foresaw would arise when the House agreed to plead in the case of Stockdale v. Hansard. I think it disparaging to this House, not only to be liable to appear before a legal court of superior jurisdiction, but before any court in the country. Nay, I can readily believe that a court of law—knowing the jealousy with which we regard our privileges—might, by exercising great astuteness in matters of mere professional and technical detail, find that our warrants were imperfect. My hon. and learned Friend the Attorney-general, feels confident that the decision of the court of law will be with us. I confess that I do not 1006 share in that confidence. No doubt the court of law would have done so some years since, but I cannot feel confident now, after the dicta which have been uttered in courts of law, that privileges necessary for us to possess, even if exercised with every precaution required by law, will receive support from the legal tribunals. In the present case the plaintiff has brought his action against the officer of the House for excess in obeying the orders of the House. That is a constructive offence. It would be difficult for our officers to execute the warrants of the Speaker without being liable to the imputation of committing excess. I can hardly believe that in a grave and important matter an officer of the House should not transgress some technical rules, and thereby commit what, in the eye of the law, is considered excess. Then, again, supposing the officer should be able studiously to observe all the established forms and precedents in such cases, might not the court of law succeed in discovering in the warrant or instrument under which the officer had acted, some technical flaw, and thereupon suspend or set aside an important privilege of this House? I acknowledge I cannot partake in the confidence which my hon. and learned Friend feels that, in the present case, the decision of the court of law will be in consonance with our wishes. I cannot forget that, as the noble Lord justly observed, the constitution places us as a controlling power over the courts of law. The functions which, in this respect, we may have to discharge, and have a right to discharge, must naturally attract the jealousy of the courts of law. This House has not only the right to address the Crown for the removal of a particular judge, but, in cases of misconduct, it has the right of exercising a power even more unpalatable to the judges; it has the right of exercising a superintending control over the manner in which they discharge their duties, and to institute inquiries relative thereto which must tend materially, if the allegations be true on which we proceed, to paralyse and diminish their authority. It appears to me, therefore, that we not only incur the ordinary danger which exists of one court of equal authority and co-ordinate jurisdiction trespassing upon the authority of another; but we also incur this additional danger that the controlling power which we exercise over courts of law must pro- 1007 duce those feelings which it is consistent with human nature should be produced, under similar circumstances, whether in Judges or Members of the House of Commons, and the courts of law will inquire, with a rigid adherence to technicalities, whether our officers may not, in some instances, have overstepped the limits of their duty. I need not remind the House that, with respect to the great privilege of printing, which Parliament itself has declared, in the preamble of the act lately passed, to be essential to the discharge of its functions, the decision of the Court of Queen's Bench was adverse to our privileges. I will not inquire whether the decision of the Court of Queen's Bench in the case to which I refer, was conformable with the strict letter of the law, because, admit it to have been legal, and it only strengthens my argument; for here we have the recorded declaration of Queen, Lords, and Commons, that there has been a decision of a court of law, which, if allowed to remain uncontrolled by the omnipotence of Parliament, would have rendered the House of Commons a mere mockery. And, therefore, whilst I consent, upon this occasion, to follow the example which has been set us, and to plead; yet I would not have it supposed that 1 do not entertain a due sense of the importance of the whole of the privileges to which we lay claim, or a due sense of the danger to which we should expose them, if we were prepared to say that whatever might be the decision of a court of law on the point, we would tamely submit to it. I now come to the third course which we may pursue, namely, to plead, and also to commit the plaintiff. I believe that course to be, at any rate, without precedent. It certainly was not pursued in the case of Burdett v. Abbott. Howard was in custody at the time he instituted one of his actions; but when he brought his second action, the House did not think proper to pursue the course of entering a plea, and also committing the plaintiff. The question is, whether it be suitable to the dignity of the House of Commons—whether it be consistent with equity and good sense, to enter a plea, and commit the plaintiff on the same day. From the course which we have heretofore pursued in these cases, I greatly doubt the policy of accompanying our pleading by the committal of the plaintiff. I care nothing about its being Mr. Howard's wish 1008 to be committed, as my hon. and learned Friend the Attorney-general has suggested. A man may be desirous of evil notoriety, and it may be impossible to execute the law without gratifying his passion in that respect. It may be Mr. Howard's desire to be committed to Newgate, and we should gratify his taste by committing him; but if I thought that the interests of public justice required that we should commit him for the purpose of maintaining our privileges, I should feel utterly indifferent as to Mr. Howard's wishes, and take the course which I might think right, without any regard to his opinions. It is impossible to make the execution of the law dependent on the feelings of individuals; it must depend on more comprehensive considerations. I have not the least doubt that it would tend to aggravate damages if Mr. Howard should be committed, and if we were to commit him, and, at the same time, to plead in the cause, no doubt some clever counsel would make a strong speech, and, by appealing to the passions and prejudices of the jury, get 500l. for damages instead of 100l. Such considerations as these, however, must be altogether disregarded. It is a matter of subordinate importance whether the House of Commons would have to pay 100l. or 500l.; but I do not think we ought to take the course which would lead to the committal of the plaintiff. As I said before, you did not pursue that course during the recess. You then visited the plaintiff with no marks of your displeasure. You gave him no notice that you saw anything in his conduct deserving censure. You paid him money, at least, the Treasury did so, there being no alternative between doing that, and leaving your innocent officers to pay the costs they had incurred in obeying your orders. You gave the plaintiff no notice that if he instituted another action, you would commit him. Under these circumstances, I do not think public opinion would support you if you should commit the plaintiff. It would be felt that you were not acting consistently with equity in taking a different course with him from that which you pursued on a former occasion. I do not doubt your power to take that course, but I again say that conflicting considerations must enter into the mind of a person placed in my situation, and my only object is to induce the House to take the course 1009 which is most consistent with its dignity, and best calculated to support its privileges. "But then," said the noble Lord, "summon Howard to the bar." Unless you are prepared to commit the plaintiff, do not enter into a contest. You have a right to look at the probable motives of the party. He may defy you, and for the purpose of obtaining additional compensation, may desire to obtain his own committal. If this be his aim, do not bring him to that bar, and thereby confer a consequence on him which he would not otherwise obtain. If you take the first step you must proceed. Do not speculate on his giving a civil answer. I cannot very well see what answer he can give. He will not say that he brings his action for excess of violence. May he not maintain perfect silence? If he be wise he will do so. Then, would you commit him for not giving an answer. I doubt the policy of doing that. Perhaps the plaintiff might say, that he brought a similar action on a former occasion, and protest against the injustice of punishing him for pursuing the same course, without having given him previous notice of our intention to do so. I have now done. I have given the House the best opinion I can form respecting circumstances of peculiar difficulty. I have most anxiously reflected on the case, and have arrived at his decision upon a due consideration of its different bearings. I think it a great defect in our jurisdiction that after the close of the Session of Parliament, it should be competent to a party to bring an action against any of our officers. Supposing the decision of the court of law should be adverse to our privilege, as I anticipate it may be, I feel confident that in that case, as in the case of printing, this House will claim that, by a clear explanation of the law, full authority shall be given to the Speaker during the sitting of Parliament and during the recess to do all those actions which are necessary, in order that the House of Commons may discharge the functions entrusted to it—in order that it may inquire into abuses, remedy grievances, punish the guilty, and perform all those great acts without which, if it could not perform them in safety and without liability to question, its place in the constitution would be degraded, and its power as a popular assembly paralysed.
§ Mr. Williams Wynnwas induced to address the House, chiefly in consequence of the allusions that had been made to the course pursued in the case of Burdett v. Abbott. He had foreseen, at the period when it took place, that it must give birth to inconveniences which would not be confined to the case itself; some of which had already arisen, while it was not difficult to see that others not less serious might occur. In that case, a committee had been appointed to examine precedents. He had been named on the committee, but had declined to serve on it, differing, as he did, in opinion from her Majesty's Ministers and several Members of the committee so greatly, that he considered his serving on it was likely to lead to no good result. That committee concluded its report by distinctly pointing at the power which the House possessed of committing persons who commenced or prosecuted actions like the present. It rested this view on the fact, that
The particular ground of action does not necessarily appear on the writ or 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 an action is brought for a thing done by order of the House. It therefore appears to the committee, even if the House should think fit to commit the solicitor or other person commencing such action, that it will be expedient for the House to give power to the Speaker or the Sergeant to appear and plead to the action.This recommendation was strongly urged by the then Attorney-general, Sir Vicary Gibbs. On that ground, his right hon. Friend, Mr. Wyndham, one of the highest assertors and most intelligent defenders of the privileges of that House, and of the liberties of the subject, at the same time gave a reluctant assent to the Speaker or Sergeant appearing to plead to the action; but this was guarded in many instances during the debate, by its being stated that it should not preclude the House from afterwards exercising its privilege of committing the solicitor, counsel, or any person concerned in commencing or carrying on the action. As to committing the plaintiff, it was a thing impossible, inasmuch as he was already in custody Sir F. Burdett was already in the Tower, where he remained till the end of the Session; therefore, unless the House had looked back to some precedents of a very early date, and transferred the plaintiff 1011 from the Tower to the prison called little Ease, he did not see what other remedy was left. But under the circumstances, on communicating with several of those who considered the privilege of the House as in danger, he proposed to the House the motion to which his hon. and learned Friend the Attorney-general had referred. He did not propose in the first instance to commit the solicitor and the persons concerned in bringing those actions, because no notice had been given that the House would look on such action as a breach of its privileges, and it did seem to him that, when, by a long stream of precedents, it had appeared as if they never would question the proceedings of those who had by habeas corpus brought the question of the validity of their commitments to the judgment of a court of law—it did seem to him that they could not, with equity at least, proceed to exercise the plenary authority of the House, without due notice that they would consider such actions a breach of privilege. At that time the Attorney-general seemed to be strongly impressed with the opinion, which was then also generally entertained by the House, that the court, on having it brought to their knowledge that the defendants were the Speaker and Sergeant of the House of Commons, would in some way put a stop to the action. He was quite willing to allow that that was a mistaken impression, and that the court could not do so. The court might have done so in former instances; there might have been communications with the Speaker to stop the action; but he thought that after the passing of the act of the 10th George 3rd., declaring that no suit should be stayed by reason of the privileges of Parliament, it would not, perhaps, have been reasonable to expect that courts of law would respect such a privilege, and stop the action which had been commenced. The House was, therefore, as had been stated, in the situation of having sanctioned an appearance in the case of Burdett v. Abbott, and having afterwards sanctioned an appearance in the case of Stockdale v. Hansard, and also in that of Howard. It seemed to him that they could not avoid pleading in the present case also; and the only consequence of not doing so would be that damages would be again given, which there would be no means of avoiding. He had certainly come to the House disposed to urge that they should at the same time proceed by commitment 1012 against the parties concerned. Those parties could not be ignorant that they were committing a breach of the privileges of the House, considering what took place on former discussions. He was not disposed himself to rest this case on the legal analogies which had been stated on both sides of the House, by his hon. and learned Friend, the Attorney-general, and by the hon. and learned Member for Lewes (Mr. Elphinstone). It did not seem to him that these were the grounds on which they ought to respect the privileges of the House; they should rest them on the ancient principle that the Houses of Parliament suis propriis legibus consistant. That it was by their own privileges and their own precedents that they should be guided as to the proper course of proceeding. But after what had been stated by his right hon. Friend, he was quite ready to admit that the course which he suggested as fit to be pursued was that which was most likely to lead to the putting such questions to rest, and that which best befitted the dignity of the House. He confessed he did not see how, in a contest with the Court of Queen's Bench, they could avoid coming to those consequences which had been suggested, and, ultimately, even to that of which his learned Friend on the other side of the House had spoken, of the military and the posse comitatus being brought into action, one against the other. Now, these are calamities so great that he did not like to argue respecting the possible cases in which they might be justified. He was satisfied that a legislative proceeding was the only way, in the state to which things had been brought, of putting an end to such cases as the present. He had himself recommended this course long ago with respect to the case of printed papers, when he stood alone in that opinion. Such a number of inconveniences of the most serious kind must arise from entering into a conflict—a conflict from which, however, they could not fly, if it was necessary—that if any method could be devised by which these inconveniences could be obviated, he thought the House ought to prefer that course to any other. He did, therefore, agree in the present state of things, that an appearance should be entered by the Sergeant in the Court of Queen's Bench. He was willing to waive the commitment of the persons concerned in bringing this action, a punishment which, he must say, he thought they 1013 richly and fully deserved, as wilful invaders of the privileges of the House, and to look to those further means which had been suggested, as likely to be best for the interests, not merely of the House and its privileges, but of the country at large.
§ Mr. Escottentirely agreed with the noble Lord, the Member for London, and the right hon. Gentleman, that there was no one point on which the House should be more earnest than in defending its privileges, and if he thought that the vote he was about to give to-night against the motion of the noble Lord, and in favour of the motion of his hon. and learned Friend, was not a good mode of vindicating the privileges of the House, or that the noble Lord's motion was a better mode, he should vote for the motion of the noble Lord. It seemed to him that there were circumstances connected with the history of the country, past and present, which, above all things, ought to make them cautious how they took any step which would in the least endanger the privileges of the House of Commons. He thought the mode proposed by his hon. and learned Friend was not only the proper way to vindicate the privileges of the House of Commons, but the only dignified way of vindicating those privileges. How stood the present case? An officer of the House had done an act by authority of the Speaker, and of the House. An action was in consequence brought against him. He had been served with process of court and declaration of trespass. The question was, whether he was to plead to this action, and the noble Lord the Member for London and the hon. and learned Member for Worcester said, that the reason why they should not allow the officers of the House to plead to this action was, that they would, by so doing, admit the authority of the Court of Queen's Bench to decide on the privileges of the House of Commons. What was that but to presume that the judges of the Court of Queen's Bench would deny those privileges, and not admit that they existed under legal and constitutional sanctions? [An hon. Member: They have done so.] That was not the present question; but if their due privileges were not respected by the judges, then would be the time for them to assert the rights of the Commons with the highest, and not with inferior antagonists. "No, no."] Hon. Members said no, but 1014 he should like to hear how they would prove that the House of Commons would put itself in a more dignified attitude, and take higher ground in asserting its privileges, because it had weak and feeble antagonists, instead of antagonists in high station; and yet that had been a former course of proceeding, He said, that by pleading to this action, they asserted the privileges of the House of Commons, because they said those privileges were a sufficient answer to the action; else why plead? They did not tell the officer of the House to put an insufficient and invalid plea on the record; they told him to put what they considered a good plea—that was, the privilege of the House of Commons. Therefore, he said, they asserted, instead of giving up, those privileges by such a course; and this appeared to him to be a full answer to the argument of the noble Lord. Suppose the judges chose to say, that the privileges of the House were no answer to the action, then would be the time to assert those privileges with a powerful hand against the judges who refused them. He should like to hear some answer to this argument; for neither the noble Lord, nor the hon. and learned Member for Worcester, had attempted to offer any reply to it. He did think the precedents of early times of much importance with reference to the case; but he had been struck with one of a singular nature. In 1641 a committee of privileges sat at Guildhall, in the City of London, and it was very singular—he did not know whether the hon. and learned Member for Worcester was aware of it—that Sergeant Wilde was the chairman of that committee of privileges, and that he was the Member for the county of Worcester. He did not know whether the hon. and learned Gentleman was the lineal representative of the principles and the character of this Sergeant Wilde, but he wished to call the attention of the House to some expressions in the report of that committee, presented to the House. Among other high-flown epithets bestowed on the House, they were called a very godly, wise, and eloquent assembly; it was stated that they were the wisest and prudentest assembly of this land. His humble opinion was, that if they meant to keep their character for being the wisest and prudentest assembly in this land, they would not presume that the judges of the realm 1015 were about to refuse a lawful recognition of their privileges, but they would plead to the action; they would tell the judges what their officer had done, and under what authority he had done it; they would make that plea his defence; and thus if their privileges were brought into question, they would justify them before the country, for to plead a privilege, was to assert its existence.
§ Sir T. WildeI do not know, Sir, with what motives my hon. and learned Friend has made his motion, but I can only declare to the House that the part I have already taken in this question has been attended with considerable pain to me. It has brought me into collision-offensive collision, I may say—with persons of whose judgment I think much more highly than I do of my own. All I can say is, that I have endeavoured to make up for any deficiencies with which I may be chargeable, by as much diligence as can be applied to this subject. I have endeavoured to impart to my hon. and learned Friends whatever information I could collect, in addition to that more valuable stock of which they are, no doubt, possessed; and if it were not that I felt that the House of Commons has now arrived at that point at which its future dignity and usefulness are to be decided, 1 have no such opinion of my own judgment, I have no such desire to occupy its time, as to venture to obtrude myself for one moment on its attention. Sir, I do believe that the character, the dignity, the constitutional position of this House are at stake. And, Sir, I am the more deeply impressed with the state of this question from perceiving that it is to the body of the House alone that the country can look for the maintenance of this House, and for the maintenance of that safety to the public in general which depends on the efficient existence of all the powers and privileges of this House; for I perceive, Sir, that every government in its turn will shrink from the difficulty and responsibility of maintaining the true station and authority of this House. The right hon. Gentleman the Member for Montgomeryshire has remarked that this case is attended with great difficulties, and I shall observe that, whoever offers suggestions to the House with respect to the course of proceeding that should now be adopted, and does not feel the weight of those difficulties, only marks the deficiency of his 1016 own judgment on the subject. For myself, Sir, 1 have never ventured to offer a remark without weighing, as deliberately as it was possible to do, the consequences which might ensue from adopting the suggestions, or from taking some other opposite course. Sir, the right hon. Baronet has uttered sentiments to-night which afforded me the highest satisfaction, not that they excited any surprise in my mind, because I had seen enough of that right hon. Gentleman—I had heard enough of his opinions with respect to the constitution of Parliament, and I know enough of his patriotism, not to be surprised either at the constitutional knowledge which he exhibited, or at the manly firmness with which he asserted and seemed prepared to vindicate those privileges. But I think, Sir, by the proposition which is before the House, a very different course is suggested. The right hon. Baronet has said, most truly, that the commitment of innocent persons, who are called upon to do certain acts in the execution of their public duty, must to every properly constituted mind be matter of great pain. But, Sir, I beg to solicit, most respectfully, of that right hon. Gentleman that he will read his own speech, in answer to this difficulty, because, in the most accurate and forcible manner, he pointed out on a former occasion how mawkish it was, how little becoming great statesmen it would be, not to perceive the difficulty, and not to be prepared to act by the commitment of ministerial officers, of those subordinates by whom, at last, the law was to be executed; and that, although it might be unfortunate that we should be placed in a situation of seeming opposition to the law, yet, if it became necessary, for the vindication of that authority, the existence of which is of such paramount importance to the public, there would be no ground for shrinking from the performance of that duty. Sir, this House would not have existed—the House of Lords would not have existed—as a legislative body, if those opinions which the right hon. Baronet has expressed before, and to which I have just referred, had not been acted on by both Houses for a long series of years. How has this House maintained its privileges? How has the House of Lords maintained its privileges? By the commitment of those individuals who had either themselves infringed them, or those public officers of the law who had been 1017 made the instruments of those persons for such purposes—of sheriffs and other public officers without number. And you have no other means of doing so. I say, therefore, that painful as it may be, and must be, to commit individuals who have become obnoxious to your censure because they have infringed your privileges, it is the only mode you have of vindicating and maintaining those privileges. Sir, after the speeches that has been made to-night, I trust the House will seriously consider its situation. It seems to be admitted that this House cannot support its constitutional position, to the maintenance of which those privileges are essentially necessary. Is that so? Do we live in more stormy times—are we exposed to more bitter attacks, do those attacks proceed from more dangerous quarters, than those to which this House has been exposed in older times? If not, the difference is not in our power and authority—the difference is in the men to whom the sacred trust is confided. It is, that we are weak—that we are pusillanimous—that we are unworthy of the trust which is confided to us—that we are no longer the zealous and conscientious trustees of the public interests. It is not because the power of Parliament is inadequate to the preservation of its just rights. Let any man look to the history of the country—see to what hostility those rights and privileges have been exposed—see from what quarter the attacks have proceeded—see the dangers which have been overcome. And you, Sir, are sitting here, and this House is enabled to continue its deliberations, and discharge its duty to the public, only by reason of the full power and energy of the House having been exerted to preserve and defend its rights from attack. But we are to be told that our power and authority to maintain our privileges is gone ! Remark the course of the speeches that have been made. The right hon. Baronet has said that you are opposed by your own precedents—that you are pursuing a dangerous course—you cannot shrink from that danger, because you have made those late precedents to which he adverted, and which he now calls on you to follow up. He says that you have made these precedents, and that you cannot now recede from them. Then, why accumulate your difficulties, why add to those precedents, by which you say you are bound and fettered at this mo- 1018 ment? Why are former bars to be strengthened, former chains to be riveted? What says the hon. and learned Attorney-general? He says—Do not vindicate your privileges on this occasion; wait till some more formidable opportunity arrives; wait till the public interests are deeply at stake, till you have accumulated precedents, by which it will be said, and said with more force than it can now be said, that you are irrevocably bound. You will be told you have gone on your own authority, you have made precedents, and now you are pursuing another course; you have laid down the law of Parliament according to your own view, and by your own conduct, and now you ask to go back and act in the face of that course which you have for a long period pursued. Is not that probable? If the right hon. Baronet be right, and if these precedents be ill-founded, and tend to fetter this House in its liberty of action, in taking measures for the public weal, if they obstruct the performance of its duty for the future, then abandon them, and take the course which your public duty points out. Whom does this House represent? What are the interests confided to its care? Is this Parliament to be told you have done wrong once and again—you have bound yourselves, and chained yourselves from doing right? You have brought the liberties of the country into danger, the privileges of the House of Commons into danger by your own conduct, and you are now called upon to take a step which will add to that danger. I ask you then to judge what the public interest requires—I ask you to look at the constitution of this House, of which the functions are essential to the maintenance of the best interests of the nation. Let that be your guide. Do not tell me that you have three or four trumpery precedents of twenty or thirty years' standing, and tell me at the same moment that new precedents and new difficulties are to be created. I have warned you before that the time must come when these precedents must be annulled, and when you will be compelled to make a stand. I know it is said by some Gentlemen, who really, I must say, speaking with all respect, seem to me, excepting the right hon. Baronet, to have very little considered the subject, that you ought to define your privileges by act of Parliament. An act of Parliament to define your privileges! It is not within human power to 1019 do that. Who is to say what shall be the privileges you will be called on to exercise? The right hon. Baronet said most truly, if I may be permitted to say that I agree with him, that it was in the power of the House to send any man into custody without a previous summons. That is a most constitutional doctrine, and I will venture to say, if I may support him, that it is founded on most constitutional precedents. What are your privileges? To consult for the public interest in every exigency, so that you may be enabled to legislate advantageously for the public. Suppose you have a conspiracy at this moment raging from one end of the country to the other, it is plainly impossible to foresee the measures of police which might become necessary. Suppose a secret committee silting at this moment, and that important witnesses were to abscond, on whose information the House might be called upon to put in practice immediate measures for the public security. The principle stated by the right hon. Baronet is therefore most correct; it is essential to the privileges of this House, which are not intended to give you power to exercise a tyranny over your fellow-subjects, but are entrusted to your hands, because no man can foresee what step may be requisite for the public interests, and no man can tell what powers you ought to possess. Let the necessity arise to which the right hon. Baronet referred—suppose it necessary to issue a warrant for the apprehension of an individual. What would be the consequence? The course you are now taking limits the House to the consent of the courts of law. Your right to do that would not stand for a moment. What would your warrant disclose? Not that you had committed a man for contempt, because you would be above stating anything that was not true—you would be above acting in any such manner; the warrant would state that it appeared to the House to be expedient to send for such a person. I think the Attorney-general and the Solicitor-general would be of opinion that such a warrant was bad; I know that we were told by them that the last warrant was bad, because some persons acted under it who were not named in it. I differed from them on that subject, but 1 ask most respectfully of the right hon. Baronet to look at his own view of Parliamentary privilege—to look at the condition of the present times, with asso- 1020 ciations of every kind in existence throughout the country. My hon. and learned Friend just returned yesterday from a prosecution which he conducted with so much benefit to the public and honour to himself, so that he did not leave behind a particle of irritation, even in the minds of such persons as he brought to public justice. Look at the nature of the spirit which was now abroad—how can you tell the powers of which the public safety may demand the exercise? Beware, then, I say, how you go on accumulating precedents and laying the foundation for arguments which will be employed against yourselves. You forget that one of the plainest privileges that could be imagined, one on the existence of which the leading Members of this House have declared that they entertained not the slightest doubt, was that of which the Court of Queen's Bench had refused to admit the existence, and which the Legislature had afterwards been obliged to establish by enactment. If you had wanted a recent instance to warn you—if the Constitution had not told you—if your statesmen of the greatest experience had not told you, that the minds of lawyers were not the best constituted for forming a judgment on great subjects like this—if you had not known that their habits of thought, their modes of arguing, and the duties to which they are accustomed, had incapacitated them from enlarging their minds and extending their views, like the politician—if you had not seen that the narrowest views on the greatest subjects, had generally been entertained by lawyers of eminence, would not that example instruct you? What could have been deemed safer than to say that this House had the power it thus claimed to exercise? I ask the first Minister of the country, a man of long experience and knowledge, who now holds the reins of Government—I appeal to the members of the late Administration—and yet how did the Court of Queen's Bench entertain your claim? What said Mr. Justice Patteson, a most venerable judge, whom I cannot name without expressing the reverence I feel for his character, "You must burn all your papers at the end of the Session." You ask what is to be done, and you are told that is your only remedy—that is your only course if you wish to avoid giving offence. Look at some of Lord Denman's opinions—remember that which he expressed concerning the reading of licentious books by the 1021 inmates of a prison, old and young persons, placed there with a view to their reformation and amendment. What in the world, he asked, had that to do with the case? If they had got into his own family, he would have seen in a moment what they had to do with domestic government. That any man should be found to say, that licentious and profligate writings, and their use by prisoners, had nothing to do with prison discipline, I own has astonished me. That and many other things surprised me in that judgment—a judgment which I will venture to state, if it came to be correctly examined, would be found to contain less of accurate law, as well as less of good sense, than any judgment ever pronounced. I may be deemed inconsistent when 1 say, that although I entertain the strongest opinions on the subject, yet I would not wish to detract from the general authority, wisdom, and learning of that noble person: but I advert to the circumstance in strong terms, because it is necessary for this House to consider whether that court is a tribunal to whose judgment they should entrust their privileges. The necessity of this warning is my apology for any strong expressions I may have used. You recommend an act of Parliament; but when the occasion arises, the House of Lords may have a difference with you as to your right to the particular privilege in question. On what considerations are the privileges of the House constitutionally founded? They are necessary to protect the House against the Crown and against the House of Lords, to maintain its own efficient and independent existence. What is the security that the Crown will be advised to give its assent to the act of Parliament, or that the House of Lords will concur in it, if human ingenuity could frame it? You have got the act, but what did I take the liberty of saying at that time? When doubting the value of my own judgment on this subject, or the weight of the opinions I may have delivered respecting it, I have been now and then emboldened by reflecting that I perceived, step by step, the formidable inconveniences which had occurred, and which would occur, from the first time the question of printed papers arose. You choose to legislate—in my humble judgment it was unnecessary—and I respectfully told the House so when the bill was brought to confirm that portion of your privilege then in dispute. I said you will 1022 soon find it necessary to legislate on another privilege, and so you will go on till some important privilege, essential to the usefulness and honour of the Legislature, shall be brought into question; but once let the Lords differ from you, and there will be an end to all your legislation on privilege. You will go on from little to little, till the House becomes more distinctly the subordinate of the House of Lords, and then I should like to know your chance of an act of Parliament which would ever raise you to the co-ordinate authority you now possess. The right hon. Baronet has stated most accurately in his speech, and I rejoice that it will be put on record, what is the nature of the privilege of Parliament. Sir, I have no doubt the right hon, Baronet will live well in history, but the respect I have for him induces me to add, that if this motion passes, he will acquire an immortality that will be little envied. Will he consent that posterity should say, that the first minister of the Crown was a man who counselled and procured the surrender of the privileges of the House of Commons. I do not think that his honours, of which I doubt not he will have a fair share, will be redeemed from the stain thrown on them, by citing the precedents of the noble Lord who sits near me. I think, with all respect, that the noble Lord was wrong in the course he took. I do not think the right hon. Baronet can cover himself by referring to him in support of the course he recommends. I hope, Sir, I have said nothing that is offensive, and I will now ask what is the practical result of the proposition now made? We know that Lord Ellenborough, in the year 1814, was the first who, in modern times, called the privileges of the House into question. Up to that time their existence had been taken for granted for a long series of years, and by men of the highest legal authority in the kingdom. The names most honoured in the legal history of this country will be found to have laid down the principle, that this House is the sole judge of its own privileges. There is, undoubtedly, one exception, the great name of Holt. But it must be remembered, that Holt not unfrequently differed in his opinion from his brethren on the Bench, and that he was not unfrequently found to be in the wrong, and that on that occasion he differed from all the other judges; there were eleven to one against him, and it has suited 1023 the adversaries of Parliamentary privilege to value this splendid minority of one above all the eleven. But what said Mr. Justice Blackstone? He declared that the courts of law would look to the eleven and not to the one. On a former occasion, when I was indulged with the patience of the House, I enumerated the names of those great lawyers, from Coke upwards and downwards; they are among the greatest luminaries of the law, and their opinions are expressed in the strongest terms; and it was not till 1814 that any surmise was excited that the courts of law would enter on this question. It was in the case of Benyon v. Evelyn that Sir Orlando Bridgeman ' chose to go out of his way and pronounce some obiter dicta inconsistent with the authority of the great men who had gone before him. It was a judgment in a case in which the freedom from arrest of the servants of the Members was disputed. Bridgeman had been expelled from, or had left the Parliament in the reign of Charles 1st; he was much attached to that unfortunate monarch, and warm with resentment at the power and authority of the House of Commons, he chose at a time when Parliament was not sitting, to indulge in a great deal of idle talk against the privileges of Parliament. It happened that the privilege then discussed was one which the Court of Queen's Bench denied, which had been admitted by former judges, and which was afterwards established by an act of Parliament. With that exception, then, the legal history of the country seemed to render it perfectly safe for the House of Commons to plead to the action brought in the year 1814. But that occasion furnished a memorable proof that it is never safe to depart from great principles. I took the liberty of saying, on a former occasion, that none of the precedents on which so much stress had been laid applied to this case. Perhaps what I then urged in support of that position was too weak to deserve attention, or require an answer—certainly, no answer has been given, either by the right hon. Baronet or by the hon. and learned Attorney-general, although I trust my hon. and learned Friend the Solicitor-general will attempt an answer. So far from applying they are cases which rather tend to show that you ought to pursue a different course; they are not guides, they ought to operate as so many warnings. I 1024 trust exceedingly that the right hon. Member for Montgomeryshire will attempt that answer. I confidently expected he would have advised a different course; I never expected to live to see him expressing an opinion that this House should plead; for I must say I have listened to him with the respect which is always due to him, and especially on an occasion of this kind; and all that I ever heard fall from him led me to expect, with the utmost confidence, that he would hardly be able to sleep in his bed if such a course were pursued. Stronger reasons, however, have no doubt occurred to him, and he agrees to the course now proposed. What he has said confirms me in the opinion I formerly expressed. Is it or is it not correct to say that the House of Commons pleaded in the case of Burdett and Abbott on the express recommendation of Sir V. Gibbs, who assured them that, as soon as the court saw that the act complained of was done with the authority of the House of Commons, they would inquire no further? Was not the House induced to plead on grounds the very reverse of those upon which the court adjudicated? If this be so, the ground on which this case is adduced as a precedent is removed. Mr. Ponsonby, Mr. Gibbs, Mr. Windham, and some others expressed their apprehension that the court should assume a larger jurisdiction than was anticipated. What was the result? Why, it was very true that the court did decide that the House had such a privilege; but did they decide that the House would be justified in exerting it without appealing to them? They acted inconsistently with that view, for they heard a long argument as to the fact whether the House possessed the privilege, and at last they decided the point, on the very dignified ground that, as almost every court had a similar privilege, they had no doubt of its existence in the House of Commons. The case went to the House of Lords. What course was taken there? My Lord Brougham, with another learned counsel, was heard in a long and elaborate argument, in favour of Sir F. Burdett, the plaintiff in error; but Lord Eldon stopped the argument on this question put to the judges—whether, if the Court of King's Bench were to commit for contempt, an appeal lay to the Common Pleas? The judges decided it would not, and the whole question fell to the ground. Now, I think that history settles the question as to the 1025 surrender of its privileges by the House of Commons. I want to have this question answered, aye or no. Did not Sir V. Gibbs, on whose authority the House voted that the plea should be put in, assure them that the court would look no farther than to see whether the act complained of was done with their authority? There cannot be a doubt it was on that assumption the House gave its assent to the proceeding. The result proved they were mistaken; for the court did not decide (as it was expected) that this House was the sole judge of its privileges. They affirmed the fact without answering the question in law, which the plea did not put in issue. In other words, they gave judgment in favour of the privilege, but against the authority of the House. That I take to be the effect of their decision. Is this, then, a precedent for you to follow? You are not now misled by an Attorney-general pledging himself that the court will restrict itself within certain limits. But we were told that the resolution to plead was adopted nemine contradicente. How can that be, when several speeches were made against it? There was, it is true, no division—as very possible there may be no division to-night, though for my part, I trust there will be—I trust some record will remain of opposition to this proceeding; but if there should not be any division, will a future Attorney-general be justified in acting on this motion as if it were unopposed? Now, so stands your first precedent, and a precedent essential to your case; for it is admitted, when you take it away, the whole superstructure you have built upon it falls to the ground. In the case of Stockdale and Hansard you thought fit to plead. I took the liberty of warning you against the proceeding. I said, "By your plea you certainly only tell the court you claim such a privilege; but although you don't give them jurisdiction, depend upon it it will be argued that you do. Depend on it the grounds you assume are not so broad and distinct as to satisfy every body of the nature of your claim, and you may be sure difficulties will afterwards arise from the course you are taking." Greater powers than mine prevailed. The House did plead, and the court, on hearing, decided against you. The House then thought they did more wrong than they were really guilty of, for though I conceived they had done wrong 1026 in consenting to plead, yet when it was agreed to plead, and it was consented to give jurisdiction, no complaint could be raised that the decision was against you. You were then about to take a very odd course; for it was suggested that the case should be brought by writ of error before the Exchequer Chamber. I think you were right not to confirm that proposal; for when you once allowed the case to go before the Queen's Bench, you could not complain that the four judges decided against you, and there was no just reason, why, on that account, you should appeal either to the Exchequer Chamber or the House of Lords. That is your second case. Following as it did the case of Burdett and Abbott, it should warn you how you proceed in future. Never forget that in Burdett and Abbott the dictum of Lord Ellenborough was propounded, on a point which did not attract public attention, but which being afterwards resorted to as authority, was taken as unquestionable law. Up to the moment of the case, I have just referred to it was universally conceded that to commit for contempt was competent to either House of Parliament Lord Ellenborough first qualified the general doctrine by observing,
I don't mean to say that if the Commons were guilty of absurd conduct, the Courts would not be justified in interfering.Why suppose any such thing? Why suppose that the judges should be more alive to propriety than the House of Commons? Why suppose any case would be sanctioned by the House of a character that must outrage all law? Such a presumption on which to base authority was not founded in law. It may be applied to every tribunal. Again, in the case of Howard and Gossett, we were assured the action was brought for excess. I argued that no ground was furnished for pleading; but it was urged that a trespass had been committed in breaking and entering a certain house under the Speaker's warrant. I replied, under this declaration, the question of the right of the original entry will not be limited to the excess, and you have no security that the court will draw such a distinction. Besides, we know not what is the extent of our authority until we ascertain its limits. You refer the question of the authority of the warrants of this House to the courts of law. I deny that the courts have juris- 1027 diction in such a case. Suppose that Howard acted as an instrument for securing the objects of Stockdale. Shall I be told, what no lawyer doubts, that the officer of this House should not remain in his house for a few hours in order to secure his person? If a lawyer doubts on this point, I hope no statesman will say that the opinion of the judges (with every respect for their talents and judgment) should be the test of the warrants of this House. The liberties of the country can never depend on a special pleader's skill. Look at the report of Mr. Burke on Warren Hastings' trial, and see whether it justifies the assumption that the rules of courts of law should be applied to parliamentary proceedings. Again, see what was done in Sacheverel's trial. The judges being asked whether the particular matter of libel should be set out, answered that it should. But what said the Lords '. The rules of law did not apply to parliamentary proceedings. I shall not be told that such a rule applies to impeachment only. I say, it applies to all parliamentary proceedings. Are you, Mr. Speaker, to carry about you a special pleader, who looks not beyond the fees which his practice brings in, who shall settle all the warrants you may issue, and are the privileges of this House to stand or fall, according to the accuracy of a pleader? Are the liberties of the people—are the most important functions of this House to depend on the technical rules of a pleader? I hear it asked—and a most important question it is—who is to judge of the legality of our warrants? I answer, this House, and this House alone. Why, do I say so? Because every court in Westminster-hall will differ as to what is a reasonable proceeding on our part, and what is not. Is such a safe tribunal? Should not every act of this House rest on something like certainty? Give the courts of law jurisdiction, and what is done in one court will be reversed in another. My hon. and learned Friend, the Solicitor-general may argue that a case may arise of a peculiar nature, calling for the interference of the courts. I say, in answer, the courts have jurisdiction, or they have not, and you must not select one case, but take all. Now, I say none of the "stream of precedents," limited to three cases which the right hon. Baronet referred to applies. I ask the Solicitor-general if there is one instance of an ac- 1028 tion being brought while Parliament was sitting against the officers of the House which was not stopped? The first case in the books was for an assault, and the man being taken into custody by a magistrate was discharged. The second was an indictment for an assault, which was quashed. [The Solicitor-General: In that case the constable was reprimanded.] ["Hear," and a laugh."] Well, I take it to be as my learned Friend asserts; but is it meant to be denied by the laugh on the other side, that the House did not constantly stop actions against its officers? Is it not notorious that repeatedly the House stopped those actions? But what I say is, Do not place implicit reliance on my statements, or those of my hon. and learned Friend; give us a committee that will accurately examine the cases, and throw such light on the question as must remove the least doubt from every mind. If you feel hampered by two or three cases, the stronger the necessity for a committee to see what has been the usage of Parliament through a long series of years. I say both the House of Lords and Commons have been in the habit of stopping those actions. But did the precedents quoted apply in this case? Are you now for the first time without alledging any special matter to plead to this action? If you are, do you mean to go on and to depend on the energy of a future House of Commons, setting aside this precedent, if an occasion should offer? Is that a proper course? Why not act as this House has done on all occasions when the question of privilege really arose? But I am asked, "Why commit for this or that offence? Why confine the power to subordinates?" Why don't we, you say, commit the judges? Because now, from their elevated station in the country, connected as they are with the administration of justice—we should do more harm to the general character of our constituents by committing them than we should do good. I beg leave to say, when I assert that I am reporting the opinions of others, rather than my own impression, I have no hesitation in saying (though I am not a rash man, or given to desperate proceedings) that I should have attempted to persuade this House to call those judges; before it. But although I say that, I by no means assert that the Commons took an improper course in acting in consistency with long established precedents. 1029 But I must maintain that there never was a case in which the House was more called on to determine whether the judges had any jurisdiction over Parliamentary proceedings. But then no possible unworthy motive could be attributed to them for the course they took. They acted as honourable and conscientious men. There was a natural indisposition to contest the question with men of their station, and it was resolved to suffer some inconvenience rather than do so. The right hon. Baronet asks, very plausibly, how can we refrain from pleading in this case? I never disguised from myself, or attempted to conceal that there are serious difficulties connected with the question; but they are the difficulties which always accompany contending jurisdictions. You tell me that your plea does not involve the question of privilege. And this in the face of a decision in which the courts have already decided on your privileges, as the right hon. Baronet must think erroneously! Are you prepared to proceed in undermining the authority of this House? What must be the effect of your decision on other Houses of Commons? The right hon. Baronet said, if he had known that such a precedent would be established by the former case, he would not have pleaded. And now that you have experience of the mischief, you persist in the same course. The hon. and learned Gentleman then proceeded to say, that he expected in this case the decision of the court would be with the House, because the warrant simply stated that the party had been guilty of contempt, without setting forth the cause of contempt. The court, therefore, in consistency with a recent decision of its own—he knew not, however, how soon the precedent might be over-ruled—would hold itself bound not to look into the cause. But, at the same time, he prayed the House to look into the language used by Lord Denman when the habeas corpus was granted in the former case. The noble Lord had said, he hoped it would not be supposed the House had made the warrant general, in order to prevent the court from looking into the cause; but, at the same time, he believed it was perfectly well understood that that had been done. He, as far as he had been concerned, had taken care to the utmost of his power that there should be as little as possible for the court to look into, and in 1030 so doing he believed he had best done his duty to that House, as a Member of it. What was the danger of submitting their privileges to the courts of law? On that point let them remember what had been said by the right hon. Baronet. What had kept the constitution in its place? The independent authority of the House of Commons. What had enabled them to resist the prerogative of the Crown at one time, and the attempt of the House of Lords to increase its jurisdiction at another? What but the independent power of that House to preserve its privileges? Why, they were altering the whole constitution of the country. They saw that there was a privilege, formerly an essential part of the independent authority of the House, and they were about to remove it; to make it subordinate to the courts of law and the House of Lords, and then they thought things would go on just as usual. Those who handed over the privileges of that House to the courts of law were inflicting a deadly wound on the constitution. He could not concur in what had been advanced by the right hon. Baronet, who, as he understood the argument, seemed to think that the present was not the occasion to move—that they should wait, till some great time of public excitement arose. What were those occasions to be? If the present was not the fitting time, when was that time to come? What were to be the circumstances to make it a fitting time? Let the House look at the present case. An important and most essential privilege was brought, into jeopardy—perhaps altogether denied. An action had been brought connected with that privilege. Was not that a great and impending evil? Besides, they ought not to reserve a great question of this kind until some occasion of excitement should arise when it might probably be mixed up with some important matters of another kind altogether, and when consequently there might be a hazard of a wrong conclusion being arrived at. In contending for this privilege the Members of that. House were asking for nothing of personal advantage or convenience to themselves. It was for the country and the country alone, and for the powers of legislation they were contending; and if ever there was a time when that privilege should be contested, it was the present. They would act a part the least becoming of statesmen if they shrunk from the present 1031 evil, waiting and postponing their decision until circumstances should arise of urgent importance, over which they had no control, should compel them into a definite course. The case was one which one Government would not willingly undertake; but delay would go on, each Ministry leaving the question to its successors, and in the end the country would be the sufferer. With respect to the case of Howard and Gosset, he said that they had shown upon how frail a ground privilege rested if referred to the courts of law, even as to the extent of those privileges. The part he had taken in that case was, that he was of opinion the course proposed was an improper one; and he protested against it. But when that course was decided upon, it became then his duty to render his best assistance in carrying it out. Before the case had come to a conclusion his hon. and learned Friends had succeeded Lord Campbell and himself (Sir T. Wilde) in office. He appealed to them whether he had shrunk from any labour, and whether he had not furnished them with every information in his power? There were stages in the proceeding when he should have desired to come back to that House, with a view of undoing what had been done; but when his hon. and learned Friends thought there had clearly been an excess of authority on the part of the House, he had then returned his brief, stating in writing his reasons for so doing. His hon. and learned Friend had said he should have been glad if he (Sir T. Wilde) had continued in the case to the last moment; but a variance in opinion with his leader when in chambers, where he could express that variance in opinion, was a very distinct thing from a difference with his colleagues in court. There he should have felt himself bound to follow the course of his hon. and learned Friend. For a junior to differ from his senior was like a breach of allegiance. Nothing, however, should induce him to follow a course he deemed inconsistent with his duties as a Member of that House, and he had resigned his brief, and retired from the case. The reason why he opposed pleading in this case was, that he thought they would be thereby adding another precedent, and be postponing the evil only to aggravate it. But was there no course which the House could take even on a less high principle than he contended for? Let them consider whe- 1032 ther that House was not bound to forbear to plead, even although it was content to stand upon the same footing as the courts of law only, and that it claimed no higher jurisdiction. He had cited some cases the other night as to that point. It was a general principle adopted by all the courts, that a commitment for contempt of any court, or an action against the officers of any court, should not be permitted to be inquired into by any other courts. Therefore he contended, even placing that House (for the sake of argument) upon the same position as the courts of law, degrading that House from its constitutional rank to the level of the ordinary courts, they were still by the course they proposed to pursue sinking that House lower, as compared with the courts, than those courts stood in relation to each other. One court of law would not inquire into the commitments of another court of law. The principle was, that each court was to be the sole judge in matters of contempt relating to that court. That was the universal rule. All the courts of law held their place in the country by powers which that House thought itself too weak to be entrusted with. He repudiated the argument, that although they had the constitutional power, it would be inconvenient or unpopular to execute it. If they were contesting the point of maintaining the authority of the House of Commons, he could not hear of inconvenience and unpopularity; or that that authority having been given to them, they would not execute it from motives of expediency. The Court of Chancery had exercised an equitable jurisdiction for many years. How had it maintained it? Solely by process of commitment. True, that power was not suspended or interrupted, as in the case of Parliament, by a prorogation, but that power of imprisonment was no more than the courts had in maintenance of their jurisdiction. That power was sufficient for all practical purposes. In the case of Exparte Clarke, an order had been issued upon Charles Clarke to pay a certain sum of money. He evaded the process of contempt. A commission of rebellion was issued against him. Two officers sought C. Clarke with the writ, but he evaded them. The commissioners of rebellion thought he was concealed in the house of his brother, Henry Clarke, and there they went to ask for him. They were told he was not there, but they in- 1033 sisted upon searching the House for him. In so doing he thought they exceeded their authority, the house being the house of Henry and not of Charles Clarke. After the commissioners had searched the house, Henry Clarke called the watchmen and gave them into custody. They were taken to the watch house, but were discharged on producing their commission of rebellion. Upon this, application was made to the Vice-chancellor to commit Henry Clarke upon the ground of his improper resistance to the execution of the process, and the Vice-chancellor committed him accordingly. Henry Clarke then brought an action of trespass against the commissioners for entering into and searching his house. Application was then made to the Vice-chancellor to stop that action. An appeal was made to Lord Lyndhurst (then Lord Chancellor), first, to discharge Clarke from commitment; and, secondly, to discharge the order on stopping the action. Lord Lyndhurst said he saw no reason to depart from the Vice-chancellor's decision as to the party being committed without being heard, and he (Lord Lyndhurst) had come to the conclusion that Clarke had committed a contempt for which he might at once be committed. The Vice-chancellor was justified in ordering him to stand committed, and it made no difference whether he were a party to the suit or not. Lord Lyndhurst then said that the Great Seal had always sustained its rights, and he would not allow the case to go before a jury. As to the argument that the commissioners being mere volunteers, and not officers of the court, were subject to Clarke's process, the answer was, that they were officers pro hac vice, and, as such entitled to protection. Then there was the case before Lord Brougham, in which his Lordship had said, that if an action were brought to dispute the authority of the court, it was his bounden duty to stop that action; but if the party only complained of some irregularity on the part of the officer, it was in the discretion of the court whether or not to stop the action. Lord Brougham might be justified in that assertion upon principle. In laying down his judgment, the learned Lord referred to some questions of privilege, upon which he entertained strong feelings, but with those upon his mind he ruled that the Court of Chancery was bound to stop an action which should question the authority of 1034 its process. That of Anstruther, which he had before mentioned—which, although it had been lightly considered by his hon. and learned Friend, yet contained some general principles—in which Chief Justice Eyre went into the history of the Court of Exchequer, put the case of jurisdiction upon general grounds of law, as well as the particular jurisdiction of the courts. Chief Justice Eyre said:—The power of enjoining parties to forbear from actions was formerly exercised with a high hand, on the ground that proceeding before other tribunals was a great contempt. On these questions the Court has proceeded on plain analogies, for there is no Court that suffers its power to be insulted or its process materially interrupted; and whenever this is attempted, a great contempt is committed, on which all the Courts proceed by attachment.The whole of that judgment proceeded upon the ground that no court would suffer its particular processes to be brought into question, and decided upon, by other courts. That House, then, in resisting an attempt to appeal to other courts, only claimed a power that was exercised by all the courts in Westminster-hall; for if there had been an attachment granted by any one of those courts, it would not have permitted that process to be inquired into or tried in any other courts. The House of Commons, above all, was bound not to permit, that to be done with its process, which the courts of law would not allow in regard to theirs. The law, as he had stated it, might be considered as a general rule common to all the courts; but that House was guided by a particular parliamentary law which was not possessed by other courts. He opposed the pleading, on the ground that it established a wrong precedent, and upon the ground that thereby the House admitted that they thought the time might come—and they seemed to be conscious it must come—when they would have to defend their privileges by their power. He appealed to the right hon. Baronet whether he believed he could rely upon legislative protection for the privileges of that House. The course proposed was placing in peril the constitutional authority of the House, and he contended there was no ground for pleading, either in principle or precedent. The plaintiff in bringing this action after the experience he had had as the attorney of Stockdale in the former proceedings, was inexcusable. For that per- 1035 son now to commence a second action, under the circumstances that he had done, was most contumacious. If the fact of his having been permitted to prosecute the former action was taken as a reason why he should not now be committed—what would the House say to the next person who should bring such an action? Would not the next person have a stronger reason to claim exemption than the plaintiff in the present instance? If the House did not in this place commit the plaintiff, it would indeed be establishing an awful precedent—a precedent, in the first place, for sending common cases of commitment to a court of law—a precedent, in the second place, for passing by altogether the conduct of an individual who ventured to bring an action of this nature, with full knowledge that it was a breach of the privileges of that House. He cared not whether Mr. Howard desired to be committed or not. He had no doubt that he did desire it, although he confessed he did not quite understand the reasoning of his hon. and learned Friend, who had attempted to show that it would be an advantage to Mr. Howard to go to gaol for the remainder of the present Session. Upon the grounds he had stated it seemed to him that the House was bound to commit Mr. Howard at all events. But the question of pleading to the action was perfectly distinct from the question of whether Mr. Howard should or should not be committed. He said that the Minister of the Crown, who led that House, was bound to take the responsibility, painful and embarrassing as it might be, of maintaining the just and necessary privileges of the House. It was not in his power, in the faithful discharge of his duty, to shrink from that responsibility—to make any temporary arrangement, and thus to allow the privileges of the House to be impaired by the establishment of bad precedents. He hoped, therefore, that the right hon. Baronet (Sir R. Peel) on reconsidering the determination he had formed, would be of opinion that there was but one way of faithfully discharging his duty to the public; and that way being—not at this or at that time, but at all times—by a just, a firm, but temperate course, to sustain the privileges of that House. If the right hon. Baronet were not prepared to take that course, he would incur a deep and fearful responsibility.
§ The Solicitor-Generalcould not avoid 1036 expressing his disappointment, that his hon. and learned Friend, the Member for Worcester (Sir T. Wilde), after the long and eloquent speech which he had addressed to the House, should have closed his observations without making any suggestion, or giving even any hint, as to the course that he thinks the House ought to pursue. Although his hon. and learned Friend admitted, and admitted with him, the difficulty in which the House was placed, and the great danger which may result from taking a false step, he withheld from the House the advantage of knowing what step in his opinion, is the proper one for the House to take. He must say, that with all the research which his hon. and learned Friend had disclosed in his very able speech—with all his learning, all his talent—the House had a right to complain, that he did not point out any practical mode of extricating the House from the difficulty in which it was placed. The advice which he felt it his duty to offer to the House, he gave under a full sense of the responsibility he was taking upon himself, and he offered it at the time he did, because the parties who had been served with the process did not like to take upon themselves the responsibility of applying for time to plead, and it was necessary, therefore, to come to the House at the earliest moment, to suggest to it what, under the circumstances, would be the fittest course for it to pursue. He certainly could not regret the adjournment of the debate. He was exceedingly anxious to hear the opinion of other Members upon the subject—and more particularly the opinions of those who differed from him as to the course he thought it right to recommend. Many hon. Members had addressed the House upon the subject to-night. They had heard the noble Lord, the Member for London (Lord J. Russell), who did not disapprove of the course which he (the Solicitor-general) suggested. They had also heard speeches from several hon. Members who disapproved of that course, and especially from his hon. and learned Friend, the Member for Worcester (Sir T. Wilde); but they had heard no suggestion from any one of them as to any course that it would be more proper to pursue than that which he had recommended. He agreed with his hon. and learned Friend as to the importance and value of the privileges of that House. He 1037 hoped it was not necessary for him to state that he was as anxious to preserve the privileges of the House as his hon. and learned Friend. He was, indeed, most anxious that every privilege necessary for the due discharge of the great functions of that House should be kept to the House. At the same time, he entirely agreed with his hon. and learned Friend behind him, that it was utterly impossible strictly to define what the privileges of the House were. They must vary from time to time, according to the circumstances which might arise, and the functions which the House might have to perform. That being the case, he assented to the proposition, that no one could be the proper judge of what were the essential privileges of the House, but the House itself. He also joined with his hon. and learned Friend, although not for the same reasons, in deeply regretting the judgment of the Court of Queen's Bench, in the case of Stockdale v. Hansard. He had considered that judgment at various times, and in every way possible, and he owned that he could not bring himself to acquiesce in the propriety of the decision, that a publication by the order of that House could be legally considered as a libellous publication. But it was not because he wished to preserve the privileges of the House, it was not because he believed on one occasion, when a most essential privilege of the House was in question, the Court of Queen's Bench gave a wrong decision—it was not on that account that he was prepared to say that the House ought to prevent its officers from pleading when an action of trespass for executing the orders of the House was brought against them. Let them understand what it was that his hon. and learned Friend, and the Gentlemen who agreed with him, contended for. The noble Lord, the Member for the city of London, said they ought to plead—that that was the only way in which the court could be informed, that their privileges were assailed. [Lord John Russell intimated his dissent.] Surely, that was what the noble Lord stated in the early part of the evening, when he moved, that the plaintiff in the action, should be brought to the Bar. He understood the noble Lord to say, that the officers should be permitted to plead, but that he thought some other step should, at the same time, be 1038 taken, and that Mr. Howard ought to be called to the Bar of the House, and questioned as to his reasons for bringing the action. But his hon. and learned Friend, the Member for Worcester, did not acquiesce in that course of proceeding. The important question to be determined was this—would the House adopt or reject the suggestion of allowing the officers to plead to the action? His hon. and learned Friend, the Member for Worcester, said that the House ought not to adopt that suggestion, that the officers ought not to be permitted to plead to the action; then he wanted to know how his hon. and learned Friend meant to dispose of the action? That was what he wanted his hon. and learned Friend practically to explain to the House. What did he mean to do with the action that had been brought? He would trace that action to its end, and ask his hon. and learned Friend how he proposed, and when he proposed to stop it? The action is brought—you do not plead. That is the first step. What is the next? Judgment goes by default, and a sheriff's jury is empannelled to assess the damages. Would his hon. and learned Friend, then, call upon the House to interfere? Would his hon. and learned Friend call upon the House to summon the jury who assessed the damages to the bar of the House, for a violation of the privileges of the House, and commit them to Newgate? Was that the first step that his hon. and learned Friend would take? His hon. and learned Friend appeared to intimate that he would not summon the jury? Would he take the under-sheriff into custody? If he would then take the under-sheriff, upon what principle would he now summon the sheriffs' jury to the bar? If his hon. and learned Friend once embarked in this course of proceeding, where was he to stop? Suppose that the sheriffs' jury have assessed the damages at a considerable sum. What is the next step? The plaintiff takes proceedings to have the damages levied. A writ is issued to the sheriffs to levy the damages. The sheriffs will either obey the writ or not obey it. Suppose they obey it; they levy the damages: the damages are in their hand, and they pay them over to the' plaintiff. The plaintiff, therefore, receives the full amount of his damages, recovered from the officers of this House, and levied upon their goods and chattels. Cart the House stop this? 1039 Can the House prevent it? If the House can neither stop nor prevent it, what was the use of his hon. and learned Friend telling the House that it was surrendering the privileges of the House by taking the course which he (the Solicitor-general) recommended. These proceedings once commenced, the House could not stop the progress of them. Here, then, were the damages levied by the sheriffs, and paid over to the plaintiff. What would the House do next? Would it punish the sheriffs? His hon. and learned Friend says, "I will prevent all difficulty upon this point, readily and easily enough, I will tell the sheriffs not to levy, and if they do levy, I will summon them to the bar of this House, and commit them." You tried to do that upon a former occasion. You summoned the sheriffs to your bar—you committed them. What was the re-suit? The damages were levied, and Mr. Stockdale put into his pocket the money which was levied upon the goods and chattels of the officers of this House. You could not prevent it. It was impossible to prevent it. They might put the sheriffs into prison, but they could not prevent the action going on if the parties concerned in it choose to perform what they conceive to be their duty in spite of their committing them for a month or two to the custody of the Sergeant-at-Arms. Put the case in the other point of view. Suppose the sheriffs, having received the order of the House of Commons, should say, "We will not execute the writ?" Accordingly the writ is not executed. What is the consequence? The plaintiff then applies to the Court of Queen's Bench for an attachment against the sheriffs. The judges of the Court of Queen's Bench issue the attachment. Who, then, are the parties implicated? Who, then, are the parties whom they must summon to their bar? The judges? They could not avoid summoning them; for in the case he was now putting they are the parties who were guilty of a breach of the privileges of that House. The sheriffs say they will obey the order of the House. The plaintiff then goes to the Court of Queen's Bench, and the judges of that court issue a writ of attachment. What would the House do? "Why," his hon. and learned Friend the Member for Worcester said, and it is the only symptom of faltering he had observed in him, "I cannot say that at this day I am prepared to ad- 1040 vise the House of Commons to summon the judges." [Sir T. Wilde: I beg pardon. I said quite the reverse.] He should be sorry for one moment to misrepresent his hon. and learned Friend, and the instant his hon. and learned Friend said that he misapprehended him, he withdrew the observation. Although he certainly must say that the impression made upon him, and his hon. Friends around him, that what fell from his hon. and learned Friend was this, that although he would not himself (individually) shrink from the duty of summoning the judges to the bar of the House, yet that in these times he should not be disposed to see such a course adopted, for the feeling of the people would be against it. His hon. and learned Friend was right in considering the public opinion must, at least, be regarded as some ingredient in the course the House had to adopt. And let him ask in what a position would the House of Commons stand before the public if it summoned the judges of the Court of Queen's Bench before it under such circumstances as those which he had described? If here, in a popular assembly, actuated by political feelings, they were to subject the judges to be summoned before them, and to be questioned at their Bar, not for any corrupt motives—not for any impropriety of conduct—but for discharging their duty as judges according to the recognized principles of law. The judges so summoned before them would be questioned for having discharged their duty in the only way they could discharge it, according to the ordinary and recognized principles of law; for if the officers did not plead, they give them no notice that the privileges of the House were involved in the case with which they were called upon to deal. If they did not plead, the judges, in their official capacity, had no means whatever of knowing that the privileges of the House had anything to do with the case. Upon this point he would refer to the words of Mr. Ponsonby, when speaking upon the case of Burdett v. Abbott.
In bad times of our history," said Mr. Ponsonby, "I admit that the House of Commons was in the habit of writing to the judges.Aye, and so was the King, the Crown, and the Crown's Ministers, but what would the judges say to such letters in these days? Why, no doubt the judges would say as Mr. Ponsonby said:— 1041If any such letter were written to me I should take no notice of it; the only way in which I could know the thing judicially, would be by bringing it before me in the ordinary and regular course of legal proceeding.He said then, that if the present case should proceed in the manner he had described, it would be necessary for the House to summon the judges, and to question them, not for any corruption, not for any improper motive, but actually for discharging their duty according to the established principles of law, which no lawyer would say they were not bound to perform. Let them trace the proceeding a little further. The attachment issues; it is served upon the sheriffs; the sheriffs are arrested and taken to the Queen's Bench, or to Newgate. What would the House do? "Why," said his hon. and learned Friend upon a former occasion, "I will tell you what I would do. I would send the officers of this House to rescue the sheriffs; to take them out of Newgate, or out of the Queen's Bench." But suppose the gaoler should refuse to let them go. [Sir. T. Wilde: It has been done over and over again.] Done over and over again! Probably it had, although he must confess that he was not aware of an instance, and he had looked into the precedents as well as his hon. and learned Friend. But on a former occasion it was said, "What if the posse comitatus should be raised to defend the civil power—what then?" "Oh," said his hon. and learned Friend, "the privileges of the House of Commons would be quite safe even then. We should make a representation to the Secretary of State for the Home Department, and the Secretary of State would be bound to apply to the Crown, and the Queen's Guards would be sent out to rescue the imprisoned officers." That was the course stated by his hon. and learned Friend on a former occasion. He wanted to trace this case practically to its end. Would his hon. and learned Friend tell him that any other consequence would follow the refusal to plead than this collision between the House of Commons and the civil power of the country? It could not be otherwise. The able and eloquent speech which his hon. and learned Friend this night addressed to the House had this striking effect, that whilst it pointed out the evils that would result from pleading, it conveyed no information to the House as to the way in which 1042 those evils were to be avoided. Upon what principle of constitutional law was it then that his hon. and learned Friend said that the House was not to plead? If he understood his hon. and learned Friend, it was this—" The House of Commons is the sole judge of its privileges;" he agreed with him, "The privileges of the House of Commons ought to be recognised by the courts of law;" he went along with him, but did his hon. and learned Friend mean to lay down a proposition so broad as this—" that the House would not permit any question which may involve the privileges of this House to be decided in the courts of law?" And did his hon. and learned Friend mean to contend that the precedents which he had looked at with so much care, both before and since the case of Burdett v. Abbott, would bear him out in that view. He undertook to say that the precedents, from the earliest time, are entirely opposed to that view. He undertook to say that the House of Commons had never done anything of the kind—had never attempted to do anything of the kind. His hon. and learned Friend, (the Solicitor-general continued), had referred to three precedents—" Burdett v. Abbott," "Stockdale v. Hansard," and the precedent which had occurred in this very case. But the hon. and learned Gentleman seemed to have forgotten another precedent which took place in 1840—a precedent which was perfectly consistent with all that had occurred, so far as he could discover, from the earliest period. In 1840, when the Sheriffs were in the custody of the Sergeant-at-Arms, they sued a writ of habeas corpus out of the Court of Queen's Bench, and it was served upon the Sergeant-at-Arms, who appealed to the House of Commons. Now, why did the hon. and learned Member for Worcester, when he cited other precedents, omit to mention this? The Sergeant-at-Arms, on being served with the writ, came to the House and said, "Here are the Sheriffs in my custody. I have been served with a writ of habeas corpus. What am I to do?" His hon. and learned Friend, the Member for Worcester, to be consistent, ought to have said to the Sergeant-at-Arms, "Take no notice of that writ. If you obey the writ, and make a return to the Court of Queen's Bench, you will bring under the decision of that court most important privileges of 1043 the House of Commons. If you make a return, you will put it in the power of my Lord Denman and the other judges of the Court of Queen's Bench to say, that the warrant of the House of Commons is no justification for your having taken the sheriffs into custody, and they may be discharged." But what was the course pursued on that occasion by his hon. and learned Friend who then filled the same office which he had now the honour to hold as one of the law officers of the Crown? He would not say that his hon. and learned Friend had advised the Sergeant-at-Arms to appear to the writ of habeas corpus; but certainly during the debate which took place on the subject his learned Friend did not advise the adoption of a contrary course. Either the noble Lord opposite, or the then Attorney-general, now Lord Campbell—certainly one or the other of them—advised the House to allow the Sergeant-at-Arms to obey the writ, and to appear in the Court of Queen's Bench. He would not say with certainty that his hon. and learned Friend did not express some doubt upon the point; but, according to his (Sir W. Follett's) impression, his hon. and learned Friend took no part in the discussion—he neither expressed his assent nor dissent in regard to the proposition which was made either by the then Attorney-general (Lord Campbell) or the noble Lord opposite (Lord J. Russell). Just observe the consequence. His hon. and learned Friend, the Member for Worcester trembled with horror at the Court of Queen's Bench having the privileges of the House of Commons submitted to its decision; but what was the consequence of the course taken by the late Government on the occasion to which he was referring? The officer of the House of Commons did obey the writ; a return was made, setting out upon the face of it the warrant of the Speaker of the House of Commons, and the officer said that he held the sheriffs in custody by virtue of that warrant. The question was actually argued in the Court of Queen's Bench; and it was contended, on the part of the sheriffs, that the House of Commons had not the power to commit, and authorities were referred to. Nay, it was not only contended that the House had not the power to commit them; but they asked the judges to discharge them, from the very form and terms of the warrant. He 1044 wished to know where was the consistency, if in 1840, when Lord Campbell was Attorney-general, and his hon. and learned Friend (Sir T. Wilde) was Solicitor-general, the House of Commons, without the dissent of his hon. and learned Friend, allowed the Court of Queen's Bench to take cognizance of a matter involving one of their most vital privileges, where, he asked, was the consistency, after that case, in his hon. and learned Friend now opposing the very same course? But this question did not rest upon the authority of either the late Solicitor-general or of Lord Campbell. He defied his hon. and learned Friend, with all his research and learning, to show any authority for the opinion he now advanced, were he to go back to the case of Lord Shaftesbury, and trace them down to the case of the committal of these sheriffs. Lord Shaftesbury was committed by the House of Lords. The House of Commons committed Mr. Murray, because he refused to receive his sentence on his knees. He would not kneel to the House. He was brought up byhabeas corpus to the Court of Queen's Bench upon that warrant, a return was made till he was in custody under the warrant of the Speaker for having been guilty of a [contempt of the House of Commons, and the court held that they were bound to give effect to the warrant. There was the case of Sir John Hobhouse, who was also brought up, within our own time, to the Court of Queen's Bench by habeas corpus. Now, if his hon, and learned Friend's argument meant anything, it meant this, that the House of Commons was so tender of its privileges, and so jealous of the courts of law interfering with them, that it could not allow its officers to plead or its privileges to be brought under discussion in the courts of law in any case; and he stated this, notwithstanding the fact that where a party had been committed upon the Speaker's warrant, when he himself was Solicitor-general, the very question was submitted to the Court of Queen's Bench, whether the Sergeant-at-Arms had any legal right to arrest the party, and take him into custody upon such warrant? But when his hon. and learned Friend (Sir T. Wilde) said, that the House of Commons ought not, and would not, submit its privileges to the cognizance of the courts of law, let him (Sir W. Follett) 1045 tell his hon. and learned Friend and the House, that they could not possibly avoid it. [Lord Howick: "Hear."] The noble Lord who cheered would, no doubt, hereafter tell him (Sir W. Follett) in what way he supposed it could be done. Suppose they summoned Mr. Howard to the bar of the House and examined him, and committed him to the custody of the Sergeant-at-Arms, and that he should sue out a habeas corpus, what course was the noble Lord prepared to adopt? Was he prepared to advise the officer of the House not to obey that writ, or would he allow him to obey the writ? If he did either the one or the other, then he would tell the noble Lord that he distinctly put before the Court of Queen's Bench the very question which was now to be decided, the House should recollect also that its privileges may have to be decided upon by the courts of law in criminal, as well as in civil proceedings. His hon. and learned Friend, the Member for Worcester thought, that the officer who received the warrant of the Speaker had a full right to go into the House of the party, and remain there till two or three o'clock in the morning, or for any reasonable time. Now, be that so. But, suppose the owner of the House should take a different view of it, and should not recognize the right of the party to remain there. Suppose he should order the officer to go, and the officer refused, and the owner proceeded to enforce his order, and a scuffle ensued, and finally the man was killed, he would ask his hon. and learned Friend how he could then avoid the courts of law deciding upon their privileges? Did he mean to say, that in such a case the courts could not take cognizance of the act of their officer? Would the House appoint a committee to investigate the murder of the man, and report as to whether the officer was justified under the warrant of the Speaker or not. Nobody could doubt that the matter, under these circumstances, must be investigated by the courts of law, and that the guilt or innocence of the party would depend upon the judges' opinion as to the legality of the warrant, and the legality of the mode in which it was executed; and that if the judges thought the warrant of the Speaker was not a legal qualification of the acts of the officer, then the party who killed him would not be guilty of murder; or if there were any excess 1046 of force used under a legal warrant, the same result would follow. It is clear, therefore, that the House cannot act upon the principle of preventing any question which involved their privileges from being discussed and decided upon in the courts of law. It might possibly happen, and the assumption might be made that the courts of law were anxious to set themselves against the privileges of the House of Commons, and would seek an opportunity to decide against those privileges. The judges certainly might do so; but he did not think they would. He did not think that because, in the single case of the publication of certain papers (the whole evil of which case he believed to have originated in the resolution of the House itself authorising the sale of their Parliamentary papers), but he did not think that because in a single case the judges had decided against the privileges of the House, that a general feeling existed on the part of the judges inimical to the privileges of the House of Commons. He hoped he should not be misunderstood. He had already stated, that he thought the judgment in that case to be an erroneous judgment. He thought so at the time; he had considered the question since, and his opinion remained the same; and this he said with all deference to the learning and talents of the learned judges. But it did not follow, because the judges in the case of Stockdale v. Hansard gave a judgment which, in his opinion, and he believed in the opinion of the great body of the House was erroneous, that they were to assume that the judges of the courts of common law would, in ordinary cases, be disposed to make decisions against the privileges of that House. He could assume no such thing, nor could he believe it. But he must refer to the argument of his hon. and learned Friend with respect to precedents. With respect to cases brought before the court by habeas corpus, his hon. and learned Friend had overlooked that part of the case, because he was unable to answer it, as he had also overlooked the argument as it applied to criminal cases. He could not, however, believe that the House of Commons had ever acted on the principle contended for by his hon. and learned Friend. He could find no precedent to show that they did it, nor did he think that they did so; if they had ever done so it must have been very 1047 rarely indeed. It was true that the House of Lords had committed, on more than one occasion, persons for bringing actions for breach of their privileges; and in the case of the King v. Patey, the House of Commons did it; but in most cases the House never thought it proper to interfere where the privileges were distinctly brought under the consideration of the court. He would now quote a case from the argument of Lord Campbell. The sheriff of Cornwall arrested a Member of Parliament; the House of Commons ordered him to be discharged; the sheriff discharged him. The plaintiff brought an action against the sheriff, and the sheriff pleaded the order of the House of Commons. Now, according to the argument of his hon. and learned Friend, that ought never to have taken place, because that was submitting to the court a question of privilege of the House of Commons. But it was done, and the question was argued on demurrer and judgment given by the court. He would refer to another case. Richard Cooke, a Member of Parliament in the reign of Elizabeth, was served with a subpæna out of Chancery: the House ordered certain Members, attended by the Sergeant-at-Arms, to go to the Court of Chancery, and signify to the Lord Chancellor, and the Master of the Rolls, that, by ancient custom, Members of Parliament were privileged from being served with subpoenas, and they required the discharge of Mr. Cooke, and that upon future occasions the like privilege might be granted to Members, upon the request of the House, signified under the Speaker's hand. The Lord Chancellor sent for answer that he knew of no such privilege touching subpoenas, and would not allow it, unless the House showed that it had been allowed by the Court of Chancery. Upon that the House directed a search for precedents. Before, however, the report was made, Parliament was dissolved. That was in the 26th of Elizabeth. The case was to be found in Hatsell's Parliamentary Precedents. In fact, in all the cases he had looked into he found no such jealousy of submitting the privileges of the House to discussion in the courts of law as had lately been assumed. He should now refer to that part of the argument of his hon. and learned Friend, in which he said that the modern precedents were not applicable. In the first place, he totally 1048 denied the existence of ancient precedents. He defied his hon. and learned Friend to produce any precedents before 1840 where the House of Commons had committed the officers of the Queen's Bench or the sheriff of a county, for acting in the ordinary discharge of their duty in a case, which involved the privileges of that House. Prior to that year there was not one such precedent on the records of Parliament. They might find precedents of the House having committed plaintiffs in actions, but he defied his hon. and learned Friend, or any other stander-up for privilege, to produce a precedent in which the House had proceeded to commit a sheriff for executing officially the legal process of the courts. He would now refer to one case in which the judges were committed, and which was generally quoted to show the extraordinary power of the House of Commons. He meant the case of Jay v. Topham. What was that case? It was an action against the Sergeant-at-Arms, for arrest and false imprisonment. The Sergeant-at-Arms was charged with having kept the plaintiff in custody, till he paid 30l. to get released. It was said that the House of Commons was not sitting at the time. He (the Solicitor-General) had not looked to see whether that was so or not; but the Sergeant-at-Arms pleaded, or attempted to plead, to that action the authority of the House of Commons. The plea was not formally pleaded—that appeared clearly from the reports of the case, and the Court of King's Bench decided that the plea in that shape was no answer to the action, and gave judgment for the plaintiff. What did the House of Commons do? Six years passed away, and nothing was done; but in the Convention Parliament, six years after the judgment, they summoned the chief justice of the Queen's Bench and the other surviving judge, to the Bar of the House.
§ Lord J. RussellThere was no Parliament in the interim; it was in James 2nd's reign.
§ The Solicitor GeneralWhether there were a Parliament in the mean time or not, those judges were summoned to the bar. What did they say? The Chief Justice at the bar of the House said that the privileges of the House of Commons he knew—he respected them—they were part and parcel of the law of the land, and every judge would recognise and acknowledge 1049 them; but that the plea was informally pleaded, and on that ground, and that alone, the court had given judgment against the defendant. What did the House of Commons do? Was this a precedent to be quoted on the present occasion? They sent the Chief Justice (Sir Francis Pemberton) and the other judge (Mr. Justice Jones) to Newgate as being guilty of a breach of privilege. Now, there was one part of what was-stated by Sir Francis Pemberton at the Bar of the House which had been quoted by Sir J. Campbell in his argument before the Queen's Bench as the opinion of a great lawyer. It was this—
We did not (said he) question the legality of your orders, nor the power of them; but the great business was, whether the Sergeant-at-Arms had pursued this order of the House of Commons, and that was the thing properly examinable; but, on the other side, it would be a monstrous mischief to the plaintiffs if such a plea was allowed to the jurisdiction, for it would be agreed on all hands if Mr. Topham had abused his authority and done any outrageous thing, then it would be recognizable by the court.Now, he (the Solicitor-General) believed that was the law as stated by Sir Francis Pemberton. He believed that the judges ought to recognise the warrant of the House of Commons and give it effect; but he was not prepared to say that it was any part of the privileges of that House or of the constitutional law of this country that if any abuse in the exercise of that warrant took place the common law courts were not competent to take cognizance of it. He proceeded now to what his hon. and learned Friend had said of the recent precedents as his hon. and learned Friend had particularly challenged him, but according to his view there were no precedents the other way; there were no precedents for the interference of the House with the courts of law, or for attempting to deprive them of their jurisdiction. He did not, however, deny that the House might commit a plaintiff for a breach of privilege. What he denied was, that there were any precedents to justify them in an attempt to interfere with the courts of law, or prevent parties from proceeding to judgment in the ordinary course. To come now to the case of "Burdett v. Abbott," his hon. and learned Friend said that that case was not applicable, and that it ought not, therefore, to govern the present case; and the reason, he said, of 1050 the House acting as they did in pleading in that case, was, that the Attorney-general (Sir Vicary Gibbs) misled the House by saying that the courts would, on being told that the committal was by order of the House, say that they could do no more. He was much mistaken if that was a correct statement of what Sir Vicary Gibbs said. What Sir Vicary Gibbs did say he would read to the House, and, as he understood it, what Sir V. Gibbs said was certainly law in his opinion. Sir Vicary Gibbs said,-—You have the power of committal—you are the exclusive judges of privilege—you voted Sir F. Burdett guilty of a breach of privilege—you sent him to Newgate. In my opinion (said he) that commitment is binding upon the courts of law, they will give it full effect.But he said more; he said—If the party is guilty of running into excess in execution of the warrant the courts will inquire into it.But if he thought that the courts would inquire into the excess, then he must have considered that they would inquire what was the extent of the authority; one power followed from the other, or rather was part of it. But Sir V. Gibbs in the course of the proceedings in the House of Commons, on Sir F. Burdett's case, in 1810, said,—He could not believe that so many able and learned judges were all mistaken about their jurisdiction, and he therefore thought that the privilege of that House had been formally recognised as the law of the land. 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 of the plea. They 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. But 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 privilege claimed by the House.He entirely agreed with Sir Vicary Gibbs. He thought that the judges were bound to take notice of the privileges of the House. Sir Vicary Gibbs went on to say,—That as it had been thrown out that there was considerable difference between the cases* Hansard, vol. xvi, p. 1002–1003.1051of the Speaker and the Sergeant-at-arms, he felt not a doubt but that the judge on reading the Speaker's plea would refuse to listen to the action, but he could not feel the same assurance as to the plea of the Sergeant, because there might be a doubt whether he had or had not overstepped his lawful authority in the manner of executing the warrant.The officers and the Sergeant-at-Arms might, no doubt, overstep their duty, and thus become amenable to the courts. This was the opinion of the Attorney-general in 1810. Sir V. Gibbs admitted that the warrant was a legal and a just one, and expressed his conviction that when the court was aware that the plaintiff was taken into custody by virtue of the Speaker's warrant, the court would not proceed with the case; but then he added, that if the Sergeant-at-Arms or any of the officers of the House of Commons had been guilty of excess in the execution of their duty, the court would inquire into that point. Even here, then, in this instance, it was clear that if any excess was committed, the question of the privilege of the House would come under the cognisance of the court, which when excess was complained of would have to inquire as to the extent of the power given by the warrant. His hon. and learned Friend the Member for Worcester gave as one reason why the case should not be submitted to the courts of law by way of plea, that the courts frequently came to different conclusions at different times, and that the privileges of the House should not therefore be submitted to varying opinions. But he would ask, in answer to this objection, were there not now varying opinions in the House itself with respect to the nature and extent of the privileges which the House claimed? His hon. and learned Friend said, that he would not consent to submit the privileges of the House to the fluctuating opinions of the judges. He would not seek for support for his argument from the manner in which, on former occasions, the privileges of the House had been abused; but did not his hon. and learned Friend know that it was claimed as a privilege of Parliament to commit a person to Newgate because he had dared to fish in a pond behind the residence of a Member of the House of Commons, and to commit another for hunting in the warren of a Member. If the decisions of the court with respect to the privilege of Parliament varied, so also did the opinions 1052 of the House, for such a privilege as that which he alluded to would scarely now be claimed. What, however, could be said for the consistency of the House on looking at the case of 1810? What, again, on looking to the case of 1837, and the other with followed, and in which the plaintiff was the same person, when in one case a plea was put in, and in the other not? Look again at the case of 1840, in which also the defendant was allowed to plead; and where, he would ask, was the consistency of the House of Commons in now refusing to plead? The course which he proposed to the House was that which had been supported by precedents for the last forty years, and how then could he be blamed for recommending it? He could not agree with the noble Lord, the Member for London, that it was incumbent on the House before adopting the course which he proposed, that it should rescind the resolutions of 1837. How had the noble Lord himself acted with reference to those resolutions? The noble Lord was a party to passing the resolutions in May, 1837. In that month, an action was commenced against an officer of the House, and application was made by him for permission to plead. The Attorney-general of the day recommended that the permission should be granted. [Viscount Howick: "Hear."] Yes, and the noble Lord who cheered, and who voted in favour of the resolutions which had only just been passed, spoke and voted in accordance with the recommendation of the Attorney-general. Yet now, the noble Lord seemed to indicate that he was doing something inconsistent with the resolutions of 1837, when, in May of that year, the noble Lord did the very thing which, in March, 1843, the noble Lord appeared inclined to condemn. An hon. Member had justified the course adopted, in the last action of Mr. Howard, on the ground of a charge of excess in the performance of the duty having been made. Now, did that make any difference in the case? Could a charge of excess be heard before the Court without at the same time, submitting to its decision the legality of the warrant and the extent to which it went, so as to ascertain how far the excess could be shown? It had been said that the House was misled on that occasion? Misled? In what way? Who misled it? The proposition was made by the Attorney-general. It had the support of the 1053 Government. Could the noble Lord, the Member for London say that he had been misled? How could the question of excess be got at but through the question of the legality of the warrant? The judge must tell the jury that the warrant authorised the officers to do so much, and no more. It was clear, moreover, from the pleading that the plaintiff had full power and right in the late action of Mr. Howard, to call in question the validity of the warrant, but the proceeding of 1840 followed the precedent of 1837, and how could the House now consistently adopt a different course? He submitted that the only safe course was the course hitherto pursued. There were one or two other observations on which he was desirous of making a few remarks. It had been said by his hon. and learned Friend that there ought not to be any legislation on the subject; if he meant that it would be impossible by legislation to define the privileges of the House, he entirely agreed with him; but he did not think that there ought to be no legislation on the privileges of the House. His hon. and learned Friend had been guilty of this inconsistency-—that in the midst of his argument he had said that one of the privileges a court of law had called in question had received the sanction of no fewer than three Acts of Parliament. There could be no doubt that Acts of Parliament had frequently been passed respecting the privileges of the House. He would not deny the possibility that the Court of Queen's Bench might decide against the privileges of the House. He would not say that there was no danger that this might at some time or other be the case, but suppose it did in this case, or any other, decide against the privileges of the House, as in the case of "Stockdale and Hansard," why he could only say, that the judges were like other men, fallible, and they might so decide erroneously. Nay, take it for granted that there might be a wish on the part of the courts to interfere with the privilege of the House, and that an ill-feeling were entertained against them. What, then, was the course which should be pursued? The constitution recognized no hostility between its component parts. The constitution took it for granted that the House of Commons would fairly and properly perform its functions, and it did not contemplate any hostility between that and the other parts of which it was composed. But 1054 then it also assumed the same with regard to the courts of law. It assumed that they would administer justice according to the laws and recognised their power as a component part of itself. If the decisions of the highest judicial tribunals should make against the privileges of that House, there was no other mode of avoiding the collision into which the House and the courts of law would then be brought than by legislation. Legislative interference was the only means which could be resorted to, as the evil could not be remedied by calling to the Bar of the House and committing the officers and judges of the courts, as such a proceeding would be a violent interference with the administration of the law. With regard to the precedents of the Courts of Chancery and common law, he did not think that a question of this sort was at all to be decided by a reference to those courts. His opinion was, that the House of Commons possessed great power and great privileges, and ought to be more a judge of those privileges than either the Court of Chancery or the courts of common law. The hon. Member for Lewes referred to the exclusive jurisdiction possessed by the Ecclesiastical and Admiralty courts and the Court of Session; but he was at a loss to know where his hon. Friend could find a precedent for saying that no action could be brought in the courts of common law involving the jurisdiction of the other courts? He (the Solicitor-general) apprehended that an action might be brought against any person in the service of the Ecclesiastical or Admiralty Courts, if guilty of any excess or impropriety, in the Court of Queen's Bench; and he knew of no precedent which excluded the courts of law from considering in like manner the privileges of the House of Commons. The hon. and learned Member for Worcester dwelt much upon the Court of Chancery stopping proceedings; and seemed to assume that the House might constitute some committee which was to decide whether there had or had not been an excess committed in the executing of the warrant, and that that committee was to compensate the party. But he did not state what he would do with the action. The action would go on all the time. They might appoint a committee, but that would not stop the action. The Court of Chancery, said his hon. and learned Friend, might slop it, and no 1055 doubt it would in one sense. What was the jurisdiction in the Court of Chancery? The great object and intent of the Court of Chancery was, that it should modify the proceedings of the courts of law by restraining parties from pressing their legal remedy too far. They could issue a writ of injunction, which upon being served on the party would prevent him from proceeding with his action at law. [An hon. Member: "How?"] That was the question he was about to ask his hon. Friend. They would do so, not by committing the judges, or by summoning the judges or officers of the Court of Queen's Bench before them. No; the Court of Chancery operated in this way—it exercised its jurisdiction by committing the plaintiff who brought the action. But if the House committed the plaintiff in this case—if it committed Mr. Howard to-morrow—did his hon. and learned Friend suppose that he could thereby stop the action? If they treated the plaintiff in this case exactly as they treated Stockdale, whom they sent to Newgate, the result, would be the same, they could not stop the action. There was a great and important difference between the power of the Court of Chancery and that of the House of Commons. First, as to its effectiveness, the Court of Chancery had the power of committing for life. And the House of Lords had greater power of committal than the House of Commons. It might be that the House of Commons ought to have greater powers, but that was not the question; they should deal with the powers of the House of Commons as they found them, and at this moment they had not the power of committing beyond the term of the present Session, at the expiration of which time the person committed; would be discharged. During the recess it had no power at all over him, it could not arrest him, it could not interfere with him in any manner. How different was the power of the Court of Chancery, which could commit all the year round, could arrest at any time, and could imprison the party to the end of his life, unless he obeyed their orders! They must see and understand what the existing power of the House of Commons was; and if they had done him the honour to follow him through the various steps of this proceeding, he was sure they must admit, that it was quite impossible with its persent power to stop an action at law. He did not agree with his 1056 hon. and learned Friend, either, that there was any similarity between this case and the Court of Chancery exercising its jurisdiction in defence of its officers where an injury had been done. The Court of Chancery acted as a court exercising its power by issuing the ordinary writs of the Crown, and for its own suitors. It served its injunction and prevented the party from proceeding in his action. But the House of Commons had no such power. Neither could he agree that it was possible to draw a distinction between the cases of "Burdett v. Abbott," "Stockdale v. Hansard," or the last action of "Howard v. Gosset," and between those cases and the present. The noble Lord (Lord J. Russell) concurred with him the (Solicitor-general) in proposing to plead, but said they ought to call Mr. Howard to the bar for the purpose of questioning him. With what object did the noble Lord propose to take that course? The House ought to know that. Did he propose to ask Mr. Howard why he brought this action?—and, if so, what would the noble Lord suggest in the event of Mr. Howard replying, that he brought it because he conceived that Sir W. Gosset had no right to arrest him under the warrant of the House? Would the noble Lord commit Mr. Howard to Newgate? Or, suppose he should say that the action was brought for an excess of authority by the officers, would he dismiss him from the Bar, telling him that he was guilty of no breach of the privileges of the House, and that anybody might bring an action for an excess in the execution of the warrants of the House? Suppose, again, that Mr. Howard would not tell his object, would the noble Lord commit him? Would he release in the one case, and commit in the other—or whatever Mr. Howard's answer was, was he prepared to commit him? If such was the noble Lord's intention or object, he should state at once that he wanted, not to interrogate, but to commit him, at the same time that he allowed the officer to plead, a course to which he the (Solicitor-General) was decidedly opposite. As regarded the present state of the proceedings, they could not tell what the party meant to do; but if Mr. Howard were to say, now at the Bar, what he wrote to the hon. Member for Finsbury on a former occasion,—namely, that he was not bringing this action to call in question the Speaker's warrant, but for excess, then would the 1057 embarrassment of the House be increased, inasmuch as they must adopt one of two courses—either dismiss him from the Bar, and thereby admit that in no case whatever would they commit in an action for excess, or else commit him for bringing his action, although they had not done so in the case of this very plaintiff in 1840—but had privileged those officers to plead to the action then brought by him. On these grounds he objected to the noble Lord's proposition, and should vote against it, and he called on the House to vote for the resolution which he had proposed to them, and which was not only consistent with prudence, but which was the only legal and constitutional course which the House could adopt.
§ Viscount Howicksaid, though he did not possess the legal knowledge of the hon. and learned Member who had just spoken, he would nevertheless venture to point out the gross inconsistency into which the hon. and learned Member had fallen, and to protest against the course the House was about to adopt. The hon. and learned Gentleman, at the commencement of his speech, had said that he adhered to every word of the resolution of 1837.
§ The Solicitor-Generalassured the noble Lord, that he said nothing about the resolutions of 1837, till he came to address himself to the argument of the noble Lord opposite, that the House ought to rescind those resolutions before it proceeded with that which he (the Solicitor-General) had recommended.
§ Viscount Howickwould ask whether the hon. and learned Gentleman did not say, that the House was the sole judge of its own privileges, and that it rested with the House, and not with the courts of law to determine what those privileges were. The resolution of 1837 sated, that
By the law and usage of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision, before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege.And yet the whole speech of the hon. and learned Gentleman was an elaborate argument to prove that the House might, indeed of right, be the judges of their own privileges, but that whatever might be their right, was quite immaterial, for that they had no means of enforcing their 1058 right, but must ultimately depend upon the courts of law, since against those courts the House had no power to struggle. The hon. and learned Gentleman's argument was, that if the House refused to plead, they would not be able to maintain their own privileges, and that if the House did plead, they had no assurance that the courts of law would not decide against the House. However clear might be the law, although the precedents were constant and uniform, and although the privileges were certain, they had no assurance that the courts of law would not decide against them; and if they did, what remedy had the House ! The hon. and learned Gentleman said the House was equally powerless to resist the judgment of the courts of law as it was to resist pleading to the action; that they had only to take the case by writ of error to the House of Lords, or to get an act of Parliament to clear up the difficulty. Either, therefore, in their appellate capacity, or in their legislative position, the House of Lords were to be the sole judges of the privileges of the Commons. That was the result of the argument of the hon. and learned Gentleman; and if this were the true state of the case, let them lose no time in expunging the resolution of 1837 from their journals. The hon. and learned Gentleman turned round upon him (Viscount Howick), and said,—What a gross inconsistency it was in you, in that year immediately after those resolutions were passed, to support the motion for pleading to the action then brought? Was there ever such gross inconsistency !He admitted that he, in common with other unlearned Members, did commit what he now thought was a great mistake upon that occasion, by bowing to legal authority. He had agreed to plead on the express assurance that the only effect of pleading would be not to acknowledge the jurisdiction of the law courts, but to give those courts information in the only technical and proper way the House could give that information, that this was a case of privilege of Parliament. Upon the faith of that assurance, which was made to the House in the most positive manner by Gentlemen of the legal profession, he assented to the course which had been adopted, but he must say, that the experience he had received, and the manner in which the House had been punished, were very good lessons to him not to be a party to taking the same step again. The moment they 1059 had pleaded, when contrary to what they had been taught to expect, there was an adverse decision, and it was a question whether it ought not to be resisted. The legal gentlemen turned round upon them and exclaimed,—What inconsistency; you have asked for the decision of the courts of law, and because that decision is against you, you will not. abide by it; whatever you may do in any other case, you can do nothing in this; Mr. Stockdale must pocket the damages.He thought, that if the House had from the first maintained its privileges, it would have been in a better position; he had disapproved of the bill of his noble Friend near him; he had always been guided by his hon. and learned Friend near him (Sir T. Wilde), whose judgment seemed to him to have been uniformly right, and who had been consistent throughout the whole proceeding; and he was the only Gentleman in that House of whom he could venture to say so much. He, for one, was not prepared again to commit the same mistake which the House had then committed. Then the hon. and learned Gentleman asked,—What do you propose to do if you call Mr. Howard to the bar?He had had no opportunity of ascertaining the views of his noble Friend, but he did not suppose that in proposing to call Howard to the bar, he intended to ask any questions, to which impertinent answers might be given. If Howard were called to the bar, he supposed the Speaker would be directed to inform him that the commencement of his action was a breach of privilege, and that if he continued it, it would be at his peril, and he should be punished. He would not follow the hon. and learned Gentleman through his elaborate argument, adduced to show, that the House had no power to maintain its privileges, but that they must acquiesce in the decision of the courts of law. If that argument were well founded, he said again, the House ought at once to rescind its resolutions on the subject of the propriety of that course. He for one was not convinced, for this simple reason, that he believed the House possessed for the defence of its privileges exactly the same power which the Court of Exchequer, the Court of Chancery, and many other courts possessed, which they found effectual, and which the House itself in former times had found amply sufficient for the assertion of 1060 its rights. The power he referred to was of commitment, which he was persuaded, if resolutely executed, was perfectly adequate to the defence of their privileges. The hon. and learned Member had drawn a distinction, and said the Court of Chancery could commit for life, and the House could only commit for a session. That was true; but the hon. and learned Gentleman, or at least the advisers of the Crown, had the power of determining the length of the Session, and, therefore, of the time during which refractory persons might be confined. Hon. Members did not, he hoped, suppose that he wished the hon. and learned Gentleman to inflict upon them such a hardship as to keep Parliament continuously sitting—far from it. But if it were necessary to maintain the privileges of the House, he apprehended there would be nothing at all unconstitutional in giving Parliament the ordinary period of relaxation by means of adjournments, instead of prorogations. That was a simple course to be pursued with any person who was inclined to harass the officers of the House with vexatious actions, and the power of the House would then be found to differ little from that of the Court of Chancery. The difference was not in the power, but in the resolution with which it was exercised. It was because the House had shown that it was not prepared to carry matters through with a determined spirit, that its authority had been braved. If they had acted in a different spirit, they would have heard nothing of this action. Even now, if they exercised the powers they possessed, he was persuaded they would succeed in maintaining the privileges which they possessed, not for their own benefit, but for the advantage of the country. He would only add, that by the resolution they were now about to adopt they would place the whole of their privileges at the mercy of the House of Lords. The admission of a power in the House of Lords to deny them any privilege which they might hereafter find necessary for the due discharge of their functions, would be the consequence of the fatal weakness of that night.
§ Mr. T. Duncombesaid, no one who recollected the debates of 1840 on this subject, but must deeply regret that this question should be re-opened on the present occasion, and by a party from whom they had no right to expect it—he meant the present plaintiff. The first action, the 1061 House would recollect, took place in 1836. There had been four actions against Mr. Hansard, and now two against Sir W. Gosset. The first action took its course; no cognizance was taken of it, and the jury of the Court of Queen's Bench found a verdict for the defendant. In 1837, Stockdale brought a fresh action against Mr. Hansard, and on a petition presented to the House from Mr. Hansard by the noble Lord near him, the House came to a resolution that this action was a high breach of privilege. Within eight days after that, in the face of that resolution, the Attorney-general was instructed to plead, and the House was assured that the verdict would be in its favour; but it was no such thing, and the House was obliged to pay the damages. Immediately after that another action was commenced, "Polack v. Hansard," which was brought by an attorney named Shaw. Polack was summoned to the Bar of the House, and then assured the House that the action had been brought without his sanction, and that it should cease, on which apology he was discharged. In 1839, Stockdale brought another action against Mr. Hansard. Mr. Hansard complained as before, and was referred to the resolution of the House which had been read. A prorogation soon after took place, the action proceeded and went against the defendant, and damages were assessed against Mr. Hansard at 600l. Parliament was called together in a hurry in consequence, and the sheriffs kept the money till the House of Commons met to see what was to be done. The sheriffs and all the parties concerned were immediately served with a copy of the resolution which the House had previously come to. It was then notified to the House that this had not stopped the proceedings—that the money must still be paid, and that Mr. Hansard's goods were even seized in execution. The House then ordered Stockdale and Howard, his attorney, to its bar. The right hon. Baronet said, if called to the Bar of the House, Howard would maintain a perfect silence; but what had he done on that occasion? He was then asked, "Are you the attorney of Mr. Stockdale?" He said, "Yes." "Have you received a copy of the resolution of the House?'' He said, "Yes." "Are you aware that you are guilty of a breach of the privileges of the House in continuing this action?" He said, "I was not aware of it till I received a copy of that resolution;" and he stated 1062 this, that if he had by his conduct incurred the censure of the House, he most deeply and honestly regretted it. The Attorney-general immediately moved that Mr. Howard should be discharged, having expressed his contrition. When this action had been settled, and the 600l. paid, Howard then brought another action, for Stockdale, notwithstanding the expression of his former contrition, and he, his son, and clerk, were again summoned to the Bar of the House. He then stated, that he had been pledged to Mr. Stockdale to protect his interests, that he had consulted high legal authority, and that, as an attorney of the court, he was bound by his oath to bring the action. That was his justification at the Bar of the House of what appeared to be a breach of good faith, and the House had committed him, and also Stockdale, to Newgate. When this fourth action had been commenced, then the House began to see the necessity of doing something, and the Printed Papers Bill was introduced. In this bill (the Printed Papers Bill), as introduced into the House by the noble Lord, there was a clause putting an end to all actions pending, or that might arise, in respect of any alleged trespass in execution of the Speaker's warrant. Howard had at that time commenced his action. The bill went to the House of Lords. The Lords sent it back with the clause struck out. Then came the question, whether they should agree to the Lord's amendment, which rejected the clause extinguishing the pending actions. It was then that Mr. Howard wrote his letter, and, having read it at the time and referred to it in the course of the debate, it would be no breach of faith, on his part, if he now communicated its contents. The letter was dated from "Newgate, 12th March, 1840." It stated, that the action brough against Captain Gossett, was for exceeding his duty in executing the Speaker's warrant, and it went on to say, that if he had not avoided being served with a copy of the writ, the declaration would have been delivered and the cause of action made known. It then entreated the opposition of Members to the second clause of the bill, more particularly because, as the letter said, it would have the effect of depriving Howard of his legal right to commence an action. If, it added, Captain Gossett had not exceeded his legal authority, he would have his remedy; if he had, the House by assenting to this clause would be making an ex post facto 1063 law to Howard's injury. The Attorney-general received one of these letters, and the argument that the enactment of this clause would operate as an ex post facto law against Howard was used successfully in the course of the debate. He did say, therefore, that the House, and especially those Members who had voted against this clause, had been misled. They had been induced to suppose that no other action would be brought. This action had been commenced despite the conviction entertained to the contrary, and he did say that the authority of the House itself had been questioned by the proceeding. In point of fact the action had nothing to do with excess of duty. It was brought for carrying Howard to Newgate, and Howard must have known when he brought it that he was not justified, and that altogether the proceeding was an unjustifiable and wanton defiance of their authority. Not regretting the course he had taken on the previous occasion, he (Mr. Duncombe) thought that this question was totally distinct from that of publication. In conjunction with many others, he had maintained that their servant had no power to libel any individual, and that if an individual were so libelled, he was fully justified in going to a court of law for redress. That was the opinion of a minority in that House three years since, which minority, in point of fact, succeeded, because they were backed by public opinion. That same public opinion, however, which then assisted that minority would now, he felt convinced, sanction the proceedings of the House in its exercise of the power of commitment. That power was, indeed, essential to the authority of the House. They gave their committees power to send for persons, papers, and records. If they were not to have the power of commitment, how were they to obtain the attendance of those persons with the papers and records they might require? If they were not to exercise that power—why should not the sheriffs, whom they incarcerated some years back, bring their actions for the recovery of damages from the House? Why should not those other persons who were last year reported by the election committee for prevarication, and held in custody by the House—why should not they bring their actions? In fact, if the House did not make a stand, there might be no end to actions of this sort. He should vote, therefore, with the greatest pleasure for the motion of the noble Lord; 1064 and, even if the House at last determined to plead, he did hope, before doing so, they would bring Howard to their Bar, and hear if he had not the same submission to make, which he was quite ready to make on the occasion when he last appeared before them, and which, perhaps, might save much future trouble and expense.
§ Sir R. H. Inglisasked why, if the noble Lord were dissatisfied with the judgment of the Court of Queen's Bench, he did not carry the judgment further. His not doing so showed that he and those who then conducted the affairs of the country concurred in the judgment of the Court of Queen's Bench, and that it must be upheld. It could not now be contested when it was not contested in the legal and constitutional form. If there was any offence against the House the offence was on the part of those who gave the judgment, and not on the part of those who carried it into execution. Unless the House were prepared to commit the judges he could not but think that the course which his hon. Friend now proposed was the most consistent and safest course, and one which the general feeling of the country would support. Unless prepared to state that the privileges of this House were to outride the powers of the courts of law, they had better take the advice given by the Solicitor-general. For these reasons he should support the hon. and learned Gentleman's motion.
§ Mr. Hardystated, that, he was anxious to say a few words to explain, why though as much an advocate for the just privileges of the House as any other Member, he should vote for the motion of his hon. and learned Friend the Solicitor-general. The noble Lord, the Member for Sunderland had accused his hon. and learned Friend of inconsistency in professing himself an advocate for the privileges of the House, and yet proposing that the officer should plead to the action, and thus probably bring those privileges into discussion by the House of Lords. He (Mr. Hardy) thought this a much more consistent course than that recommended by the noble Lord which was not to plead, but to commit the attorney for bringing the action. In spite of such commitment, the action would proceed; and there being no plea, judgment by default would be obtained, and the officers would be fixed with costs which were probably all that the attorney cared for. Actions might be brought near 1065 the close of the Session, and if the individuals bringing them were to be imprisoned that imprisonment must soon terminate; and yet the actions for want of pleas must go on, and carry judgment by default, and of course costs. Surely, it was more dignified in the House to permit its privileges to be pleaded before a court of law, than thus to be made a profit of by tricking practitioners, and incur the inconsistency of imprisoning the attorney, and yet permitting his suit to go on to a successful issue. But it was possible that the privilege contended for might be indisputable, and yet there might be illegality or excess in the conduct of those who acted under the authority of it, and was the party to have no remedy for such a wrong? All who had read no more of law than Blackstone's Commentaries, must know that it was the boast of the law of England, that there was no wrong without a remedy, yet unless the party injured could bring his action for such illegality or excess as that alluded to this maxim would be falsified. The hon. and learned Member for Worcester suggested the appointment of a committee to determine on the compensation which the party suffering should receive, but what dependance would he place on a committee being appointed, or if appointed on its granting him redress such as he could claim at the hands of a jury? The House might depend upon it that they could not long retain any privilege in the practical exercise of which they failed to secure the sympathies of the people, and of no wrongs were the people more justly jealous than of those committed under the guise of authority. A great distinction should be made between the conduct of a party who sought redress for undoubted wrong, and one who brought an action gratuitously for the purpose of disputing the authority of the House. The latter would deserve to be committed, the former ought to be assisted.
§ The House then divided, on the question that the words proposed to be left out stand part of the question:—Ayesl57; Noes 84:—Majority 73.
| List of the AYES. | |
| Acland, Sir T. D. | Ainsworth, P. |
| Acland, T. D. | Antrobus, E. |
| A'Court, Capt. | Archdall, Capt. M. |
| Acton, Col. | Arkwright, G. |
| Adare, Visct. | Baring, hon. W. B. |
| Barrington, Visct. | Heathcote, Sir W. |
| Baskerville, T. B. M. | Henley, J. W. |
| Bentinck, Lord G. | Hepburne, Sir T. B. |
| Blackstone, W. S. | Herbert, hn. S. |
| Blakemore, R, | Hervey, Lord A. |
| Boldero, H, G. | Hodgson, H. |
| Borthwick, P. | Hope, hon. C. |
| Bramston, T. W. | Hope, G. W. |
| Broadley, H. | Hornby, J. |
| Broadwood, H. | Houldsworth, T. |
| Brownrigg, J. S. | Hughes, W. B. |
| Bruce, Lord E. | Inglis, Sir R. H. |
| Bruce, C. L. C. | Irton, S. |
| Buckley, E. | Jermyn, Earl |
| Buller, Sir J. Y. | Johnstone, Sir J. |
| Bunbury, T. | Knight, F. W. |
| Burroughes, H. N. | Law, hon. C. E. |
| Cardell, E. | Lawson, A. |
| Chelsea, Visct. | Lennox, Lord A. |
| Cholmondeley, hn. H. | Liddell, hon. H. T. |
| Christie, W. D. | Lincoln, Earl of |
| Christopher, R. A. | Lockhart, W. |
| Chute, W. L. W. | Lowther, J. H. |
| Clayton, R. R. | Lyall, G. |
| Clerk, Sir G. | Lygon, hon. Gen. |
| Clive, hon. R. H. | Mackenzie, W. F. |
| Colvile, C. It. | McGeacny, F. A. |
| Corry, rt. hon. H. | Mahon, Visct. |
| Cripps, W. | Manners, Lord J. |
| Damer, hon. Col. | Martin, C. W. |
| Darby, G. | Master, T. W. C |
| Davies, D. A. S. | Masterman, J. |
| Denison. E. B. | Maxwell, hon. J. P. |
| Dickinson, F. H. | Miles, P. W. S. |
| Douglas, Sir H. | Murray, C. R. S. |
| Douglas, Sir C. E. | Neville, R. |
| Duncombe, hon, O. | Newdigate, C. N. |
| East, J. B. | Nicholl, rt. hn. J. |
| Eastnor, Visct. | Norreys, Lord |
| Egerton, W. T. | Northland, Visct. |
| Egerton, Sir P. | O'Brien, A. S. |
| Eliot, Lord | Packe, C. W. |
| Escott, B. | Pakington, J. S. |
| Fellowes, E. | Patten, J. W. |
| Ferrand, W. B. | Peel, rt. hn. Sir R. |
| Filmer, Sir E. | Peel, J. |
| Fitzroy, Capt. | Pennant, hon. Col. |
| Flower, Sir J. | Plumptre, J. P. |
| Follett, Sir W. W. | Polhill, F. |
| Forbes, W. | Pollington, Visct. |
| Fuller, A. E. | Pollock, Sir F. |
| Gaskell, J. Milnes | Powell, Col. |
| Gladstone, hn. W. E. | Praed, W. T. |
| Gladstone, Capt. | Pringle, A. |
| Gordon, hon. Capt. | Pusey, P. |
| Gore, M. | Rolleston, Col. |
| Gore, W. R. O. | Rose, rt. hn. Sir G, |
| Goring, C. | Round, J. |
| Goulburn, rt. hon. H. | Rushbrooke, Col. |
| Graham, rt. hn. Sir J. | Sheppard, T. |
| Grimston, Visct. | Sibthorp, Col. |
| Hamilton, W. J. | Smollett, A. |
| Hamilton, Lord C. | Somerset, Lord G. |
| Hanmer, Sir J. | Sotheron, T. H. S. |
| Hardinge, rt. hn. Sir H. | Stanley, Lord |
| Hardy, J. | Sturt, H. C. |
| Hatton, Capt. V. | Sutton. hn. H. M. |
| Taylor, T. E. | Wood, Col. T. |
| Tennent, J. E. | Wortley, hon. J. S |
| Tollemache, J. | Wynn, rt. hon. C. W. W. |
| Trench, Sir F. W. | Yorke, H. R. |
| Trevor, hon. G. R. | Young, J. |
| Vivian, J. H. | TELLERS. |
| Waddington, H. S. | Fremantle, Sir T. |
| Wodehouse, E. | Baring, H. |
| List of the NOES. | |
| Aglionby, H. A. | Listowel, Earl of |
| Aldam, W. | Macaulay, rt. hn. T. B. |
| Armstrong, Sir A. | Marjoribanks, S. |
| Bannerman, A. | Marshall, W. |
| Baring, rt. hn. F. T. | Martin, J. |
| Barnard, E. G. | Morris, D. |
| Blake, M. J. | Morison, Gen. |
| Blake, Sir V. | Morrison, J. |
| Blewitt, R. J. | Napier, Sir C. |
| Bowring, Dr. | Norreys, Sir D. J. |
| Brotherton, J. | O'Brien, J. |
| Busfeild, W. | O'Brien, W. S. |
| Cavendish, hon. G. H. | Ogle, S. C. H. |
| Childers, J. W. | Paget, Col. |
| Clay, Sir W. | Paget, Lord A. |
| Colborne, hn. W. N. R. | Palmerston, Vist. |
| Craig, W. G. | Parker, J. |
| Crawford, W. S. | Pechell, Capt. |
| Dashwood, G. H. | Pulsford, R. |
| Duncan, G. | Ricardo, J. L. |
| Duncombe, T. | Ross, D. H. |
| Easthope, Sir J. | Russell, Lord J. |
| Ebrington, Visct. | Smith, J. A. |
| Elphinstone, H. | Stansfield, W. R. C. |
| Evans, W. | Stanton, W. H. |
| Ewart, W. | Stuart, Lord J. |
| Forster, M. | Strickland, Sir G. |
| Fox, C. R. | Strutt, E. |
| Gill, T. | Tancred, H. W. |
| Grey, rt. hn. Sir G. | Thornely, T. |
| Grosvenor, Lord R. | Towneley, J. |
| Hallyburton, Lord JFG | Vane, Lord H. |
| Hastie, A. | Vivian, J. H. |
| Hay, Sir A. L. | Wallace, R. |
| Hayter, W. G. | Wilde, Sir T. |
| Hindley, C. | Williams, W. |
| Hollond, R. | Wilshere, W. |
| Horsman, E. | Wood, C. |
| Howard, hn. C. W. G. | Wood, G. W. |
| Howick, Visct. | Worsley, Lord |
| Hume, J. | |
| Hutt, W. | TELLERS. |
| Labouchere, rt. hn. H. | Hill, Lord M. |
| Langston, J. H. | Tufnell, H. |
§
The question as originally proposed,—
That Sir William Gossett, knight, the Sergeant-at-Arms, attending this House, have leave to appear and defend the action brought against him by Thomas Burton Howard for trespass," (was then put.)
§ The House divided—Ayes 135; Noes 71:—Majority 64.
| List of the AYES. | |
| Acland, Sir T. D. | A'Court, Capt. |
| Acland, T. D. | Acton, Col. |
| Adare, Visct. | Henley, W. J. |
| Antrobus, E. | Hepburn, Sir T. B. |
| Archdall, Capt, M. | Herbert, hon. S. |
| Arkwright, G. | Hervey, Lord A. |
| Baring, hon. W. B. | Hodgson, R. |
| Baring, rt. hon, F. T. | Hope, hon. C. |
| Barrington, Visct. | Hope, G. W. |
| Baskerville, T. B. M. | Hornby, J. |
| Bentinck, Lord G, | Houldsworth, T. |
| Blackstone, W. S. | Hughes, W. B. |
| Blakemore, R. | Inglis, Sir R. H. |
| Boldero, H. G. | Irton, S. |
| Borthwick, P. | Jermyn, Earl |
| Bramston, T. W. | Knight, F. W. |
| Broadwood, H. | Law, hon. C. E. |
| Brownrigg, J. S. | Lawson, A. |
| Bruce, Lord E. | Lincoln, Earl of |
| Bruce, C. L. C. | Lockhart, W. |
| Buckley, E. | Lowther, J. H. |
| Buller, Sir J. Y. | Lyall, G. |
| Bunbury, T. | Mackenzie, W. F. |
| Burroughes, H. N. | M'Geachy, F. A. |
| Cardwell, E. | Mahon, Visct. |
| Cholmondley, hn. H. | Manners, Lord J. |
| Christie, W. D. | Martin, C. W. |
| Christopher, R. A. | Masterman, J. |
| Chute, W. L. W. | Maxwell, hon. J. P. |
| Clayton, R. R. | Murray, C. R. S. |
| Clerk, Sir C. | Neville, R. |
| Clive, hon. R. H. | Newdigate, C. N. |
| Colvile, C. R. | Nicholl, right hon. J. |
| Corry, right hon. H. | Northland, Visct. |
| Cripps, W. | O'Brien, A. S. |
| Damer, hon. Col. | Packe, C. W. |
| Darby, G. | Pakington, J. S. |
| Davies, D. A. S. | Patten, J. W. |
| Denison, E. B. | Peel, rt. hon. Sir R. |
| Dickinson, F. H. | Peel, J. |
| Douglas, Sir C. E. | Pennant, hon. Col. |
| East, J. B. | Plumptre, J. P. |
| Eastnor, Visct. | Polhill, F. |
| Egerton, Sir P. | Pollington, Visct. |
| Eliot, Lord | Pollock, Sir F. |
| Escott, B. | Powell, Col. |
| Fellowes, E. | Pringle, A. |
| Ferrand, W. B. | Pusey, P. |
| Filmer, Sir E. | Rolleston, Col. |
| Fitzroy, Capt. | Round, J. |
| Flower, Sir J. | Rushbrooke, Col. |
| Follett, Sir W. W. | Russell, Lord J. |
| Forbes, W. | Sibthorp, Col. |
| Fuller, A. E. | Smollett, A. |
| Gaskell, J. Milnes | Sotherton, T. H. S. |
| Gladstone, rt. hn. W. E. | Stanley, Lord |
| Gladstone, Capt. | Sutton, hon. H. M. |
| Gordon, hon. Capt. | Taylor, T. E. |
| Gore, M. | Trevor, hon. G. R. |
| Gore, W. R. O. | Waddington, H. S. |
| Goulburn, rt. hn. H. | Wodehouse, E. |
| Graham, rt. hn. Sir J. | Wood, Col. T. |
| Grimston, Visct. | Wortley, hon. J. S. |
| Hamilton, W. J. | Wynn, rt. hn. C. W. W. |
| Hamilton, Lord C. | Yorke, H. R. |
| Hanmer, Sir J. | Young, J, |
| Hardinge, rt. hn. Sir H. | TELLERS. |
| Hardy, J. | Fremantle, Sir T. |
| Heathcoat, Sir W, | Baring, H. |
| List of the NOES. | |
| Aglionby, H. A. | Labouchere, rt. hn. H. |
| Aldam, W. | Langston, J. H. |
| Armstrong, Sir A. | Marjoribanks, S. |
| Barnard, E. G. | Marshall, W. |
| Blake, M. J. | Martin, J. |
| Blake, Sir V. | Morris, D. |
| Bowring, Dr. | Napier, Sir C. |
| Brotherton, J. | Norreys, Lord |
| Busfeild, W. | O'Brien, J. |
| Cavendish, hon. G. H. | O'Brien, W. S. |
| Childers, J. W. | Ogle, S. C. H. |
| Colborne, hn. W. N. R. | Paget, Lord A. |
| Craig, W. G. | Palmerston, Visct. |
| Crawford, W. S. | Parker, J. |
| Dashwood, G. H. | Pechell, Capt. |
| Duncan, G. | Pulsford, R. |
| Duncombe, T. | Ricardo, J. L. |
| Easthope, Sir J. | Ross, D. R. |
| Ebrington, Visct. | Smith, J. A. |
| Elphinstone, H. | Stansfield, W. R. C |
| Evans, W. | Stanton, W. H. |
| Ewart, W. | Stuart, Lord J. |
| Forster, M. | Strickland, Sir G. |
| Fox, C. R. | Strutt, E. |
| Gill, T. | Tancred, H. W. |
| Grey, rt. hn. Sir G. | Thornely, T. |
| Grosvenor, Lord R. | Towneley, J. |
| Hallyburton, Lord J. F. G. | Wallace, R. |
| Wilde, Sir T. | |
| Hastie, A. | Williams, W. |
| Hay, Sir A. L. | Wilshere, W. |
| Hayter, W. G. | Wood, C. |
| Hindley, C. | Wood, G. W. |
| Hollond, R. | Worsley, Lord |
| Horsman, E. | |
| Howick, Visct. | TELLERS. |
| Hume, J. | Hill, Lord M. |
| Hutt, W. | Tuffnell, H. |
§ "It was also ordered, That William Bellamy, a messenger of the House, have leave to appear and defend the action brought against him by Thomas Burton Howard for trespass. That her Majesty's Attorney-general be directed to defend Sir William Gosset, against the said action; and that her Majesty's Attorney-general be directed to defend William Bellamy, against the said action."