§ The Order of the Day for the House taking into its consideration the Report of the Committee on Printed Papers on the subject of the case "Howard v. Gossett," having been read,
The Solicitor General
rose to move, in accordance with the recommendations of the Committee, that in the case of "Howard v. Gossett" a writ of error should be brought upon the judgment of the Court of Queen's Bench. The House would observe that that Report was not founded on the unanimous recommendation of the Committee. His hon. and learned Friend the Member for Worcester, his hon. Friend the Member for the University of Oxford, his noble Friend the Member for Hertford, and the hon. Member for Kendal, although upon very different grounds, had dissented from the recommendation of that Report. At the same time, he was bound to add that, however opposed they may have been to the result of the deliberations of the Committee, they all of them afforded it the most zealous, able, and generous assistance. He was not insensible of the difficulty of the task which he had undertaken, or of the hopelessness 1209 of attempting to reconcile the differences of opinion which invariably arose whenever the privileges of the House became matter of discussion. He was aware that he should be opposed by two very different classes of opponents. By those, amongst whom were some of the most powerful Members of the House, who upon every occasion were anxious to maintain its privileges with a very high hand, who objected to any question being submitted to the consideration of a court of law which might by possibility involve the question of those privileges, and who, therefore, would regard the recommendation of the Committee as the result of weakness and pusillanimity. The other class, at the head of which he supposed he must place his hon. Friend the Member for the University of Oxford, were of opinion that there must be an unqualified submission on the part of the House—that having once agreed to submit to the decision of the Queen's Bench they ought not to do anything which might in any way question the propriety of that decision. To the first class he would point out some of the names of the Members who composed the Committee. Without any invidious distinction he would select those of the noble Lord the Member for London, and the right hon. Baronet at the head of the Government, and reminding the House of the stand which they had always made in asserting the privileges of the House, he would venture to ask whether their acquiescence in the course recommended, was not a guarantee that that recommendation had not been the result of any tame or timid abandonment of the privileges of the House? With regard to the other class, he would ask his hon. Friend the Member for the University of Oxford, how the course recommended by the Committee was at all inconsistent with the principle for which he contended? He was an advocate for the authority of the law, not for the infallibility of any particular court; and he (the Solicitor General) could not understand how his hon. Friend could consider that the control of the law was in the least degree affected by an appeal to a higher tribunal, in a matter clearly within its province, and in the regular course of justice. He was led to suppose that there would be a coalition on the present occasion of the parties who entertained these opposing opinions against the intermediate course which he was about to recommend to the House. But he trusted 1210 that they, and the House generally, would feel that the matter was one of serious importance—was deserving of the deepest consideration—and would, therefore, hear with patience the observations he had to address to them. And, first, he must briefly recall to the recollection of the House the main facts of the case. It appeared to him entirely a misapprehension to suppose that any question of privilege, strictly so called, existed upon the present occasion. The question had arisen, not in the assertion of any privilege, but by the exercise of a power possessed by the House—a power inherent in the duties which it had to discharge, and which was essential to its high constitutional functions—he meant the power of requiring and compelling the attendance of all persons at the bar of the House for the purpose of being examined. That the House had a right to institute an inquiry into all matters of public interest, there could be no doubt whatever; and that the power in question was necessarily incident to that right, was equally undoubted: because, to deprive the House of the power of compelling parties to appear before it, would deprive it of the right itself, by taking away the means of exercising it. The House would not, therefore, be surprised to find, that from the earliest period this right had been exercised, had been acknowledged by the courts of law, and even by those Judges who were considered not the most friendly to its privileges. It was in the exercise of this undoubted power that the question originally commenced. In the course of an inquiry which took place into certain proceedings, in one of the numerous actions of "Stockdale v. Hansard," which had been commenced by Howard the attorney, it was necessary, in the opinion of the House, to require his attendance at the bar. He appeared, admitted the fact charged, submitted entirely to the House, acknowledged his error, received a reprimand, and was discharged. In a very short time after, he repeated the offence by commencing a fresh action. It was impossible the House could submit to be trifled with in this manner; and it was, therefore, decided that an inquiry should be immediately instituted, and Mr. Howard be desired to attend at the bar of the House forthwith. There can be no doubt that he endeavoured to avoid the service of the order, and had, therefore, been guilty of a contempt of the authority of the House. The House, on the evidence which was before it, might at once have proceeded to 1211 adjudge him guilty, and to punish him: and if it had done so there was no tribunal or authority in the country which could have questioned the act. But it chose to proceed in a milder and more forbearing manner. Adverting to, and following, a precedent of 1731, it decided that Howard should be brought to the bar of the House in the custody of the Sergeant-at-Arms; and it was upon the warrant issued by the Speaker, by order of the House to that effect, that the question arose. The attention of hon. Members had already been attracted to that document; and, certainly, if it was to be considered by the rules of common sense and reason, there could be no doubt whatever that it was a perfectly good and valid warrant. Any person not having a knowledge of law, but applying his common sense to the construction of it, could not have the slightest doubt, from the terms in which it was drawn, that it conveyed sufficient authority to the Sergeant-at-Arms to do what the Speaker was ordered to direct him to do, namely, to bring Mr. Howard to the bar of the House. Mr. Howard, on being informed by the Sergeant-at-Arms that such a warrant had been issued, accompanied him to the House, where he was ordered to attend at the bar. The House, after questioning him, adjudged him guilty of contempt, and ordered him to be committed to Newgate. Three years after, Mr. Howard, who did not appear very sensitive upon the subject, having allowed the matter to sleep for that length of time, brought his action for the imprisonment. The House was informed of the fact, and, after a long debate, which was adjourned from February to March, came to the Resolution that the Sergeant-at-Arms should be permitted to appear by the Attorney General, and defend the action. Now, it was necessary to remark, as regarded the form of that Resolution, that it conveyed no authority to the Attorney General to appear and defend the privileges of the House, but merely to appear and defend the action. He must also say that he was disposed to coincide in the opinion that by the Resolution of March, 1843, there was no intention whatever on the part of the House to submit its privileges to the decision of a court of law. The idea was entertained that when the court became aware that this was an imprisonment which had proceeded from the authority of the House through its own organ, it would immediately decide in its favour. They roust, however, bear in mind what had pre- 1212 viously taken place. On the 9th of June 1837, his noble Friend, Lord Campbell, then Attorney General, informed the House that a second action had been brought by Stockdale against Hansard; and he obtained the permission of the House that the defendant should appear and plead. Dates were very important in this matter. On the 30th of May, 1837, the House had adopted some strong Resolutions of a Committee, in regard to the existence of its privileges, its sole and exclusive right to judge of them, and to treat as a contempt and an offence any endeavour to bring them in question. And yet it would appear that only nine days afterwards the Attorney General persuaded the House to let him appear and plead to the action against Hansard. He believed it would be admitted by all who heard him that there was not a more zealous, or strenuous, as well as a more able asserter of the privileges of the House, than Lord Campbell. He was, therefore, bound to believe that, notwithstanding the Resolutions of the House nine days before, there were reasons which influenced the decision of Lord Campbell, and which led him irresistibly to the conclusion that it was not advisable to resist the appeal to the law in the particular case. He supposed, perhaps, that when the plea was put upon the record, it would be considered by the court as a complete answer; but he and the House were disappointed in this expectation; and the Court of Queen's Bench, although told that it was a question of privilege, although informed by the plea of a distinct Resolution of the House of Commons that it alone had authority to decide what was or what was not privilege, determined against the validity of the plea, and in favour of the plaintiff. All this occurred before the Resolution of March, 1843, so that it was impossible to say that the House was entirely satisfied that the Court of Queen's Bench would declare the jurisdiction in the present case. It was warned also by the right hon. Baronet at the head of the Government of the extreme probability that some nice and technical objection would be taken to the Speaker's warrant, and that the Judges would decide the question on that ground. It was very important that the House should be in full possession of all the circumstances connected with the Resolution of 1843. Upon that Resolution pleas were put upon the record, to which pleas there was a demurrer. He would very shortly, and in a manner as free from technicalities as he could, explain what was admitted by that demurrer. It 1213 was admitted that certain matters came on to be debated and discussed in the House of Commons, in which it was considered necessary that the attendance of the plaintiff should be required; that he was ordered to attend; that he wilfully and contemptuously refused obedience, having no reasonable cause or excuse, and absented and secreted himself; that therefore it was directed that he should be brought to the bar in the custody of the Sergeant; and that the Speaker should issue his warrant accordingly. The assertion ran through all the pleas that all this was done in pursuance of the ancient usages and privileges of the House, and the law and custom of Parliament. Upon these pleas and the demurrer an argument took place before the Judges of the Court of Queen's Bench in November last. Here he was bound to express his sincere regret that, owing to an accidental circumstance, it had fallen to his (the Solicitor General's) lot to argue the case for the House. That accidental circumstance was the illness of his hon. and learned Friend the Attorney General; and no one could lament more deeply than he (the Solicitor General) did the irreparable loss which at this moment was impending over the country. He might venture, however, to appeal to all who had taken the trouble to read his argument, whether he had in any manner surrendered the privileges or compromised the dignity of the House. The Judges appeared to have entertained considerable doubt upon the question, and their decision was delayed for six months; it was delivered on the 15th May of this year; and he must say that it had entirely disappointed his expectation. It would not be becoming in him to take advantage of the position in which he stood to canvass or criticise that judgment; but he might refer the House to the Report of the Committee, in which would be found collected the various contradictory reasons on which the decision of the majority of the Judges was founded; he might also, perhaps, be permitted to remark that from the discordant reasons assigned in different parts of the judgment, few could be led to form any distinct opinion against the validity of the warrant. The respect he felt for the learned Judges led him to the expression of his regret at the nature of the decision, and especially at the manner in which one of those Judges most unnecessarily went out of his way to question one of the most undoubted privileges of the House. He regretted the tone and manner of that 1214 learned Judge's decision, and was the more surprised at it, when he knew that his judgment was written and composed after six months' deliberation. He was very much afraid that the doctrines that Judge maintained, and which were unnecessary to the determination of the case, had led to much of the embarrassment and difficulty as to the course the House ought to adopt on the present occasion. Having, then, brought the narrative down to the judgment of the Court of Queen's Bench, which, it should be mentioned, was only that of a majority of the Judges, he was anxious to direct the attention of the House to the course it would be advisable to pursue. He would venture to suggest to one class of opponents by whom he should be met, and to whom he had already alluded, that in this particular case there was no possibility for them to carry their principles as strenuous supporters of privilege into action. What had occurred a few nights ago had placed the House in such a position as to render it impracticable to adopt any of the measures recommended by the hon. Member for Montrose (Mr. Hume). It would be recollected that the Committee had made a short Report, in which it indicated its opinion that a writ of error should be brought upon the judgment, and that it was not necessary to interpose to prevent the levy of the 200l. which the plaintiff had recovered by a verdict on a writ of inquiry. It was considered desirable that no discussion should take place until the House had been informed of the reasons for the recommendation of the Committee; and he (the Solicitor General) had therefore moved that the consideration of the Report be deferred to a future day, that day being beyond the period when the plaintiff could levy his damages. On the 30th of May, the hon. Member for Montrose proposed a contrary Resolution, and the noble Member for Sunderland (Lord Howick) had moved that the debate should be adjourned until the Report of the Committee could be taken into consideration. It was perfectly well known, that during the interval the plaintiff would avail himself of the opportunity to levy his damages; and he (the Solicitor General) admitted, with the hon. Member for Montrose, that that was the moment for the House to assert its privileges. The House, however, agreed to the Motion of the noble Member for Sunderland; and in the meantime the plaintiff, after a levy, received the amount of his damages and costs. Thus circumstanced, he would ask hon. Members, the strong asserters of privilege, what course 1215 in that direction could the House now adopt? Even in spite of having gone into a court of law, and in spite of all that had since occurred, the House might have prevented the levy. The question that it should do so was distinctly brought before it; it knew that time was then of vital importance, but it refused to entertain the proposition of the hon. Member for Montrose; it had purposely adjourned the debate over the day when the plaintiff could levy, and what was it now to do? The question now was, whether it was advisable for the House to sit down patiently and silently under the judgment of the Court of Queen's Bench, as he supposed the hon. Baronet the Member for the University of Oxford would contend it ought? If the question had turned entirely on the narrow and technical ground on which it had been placed by Mr. Justice Wightman—if it had been a mere question of the legality of the warrant—and if this had been the only case which went to impeach the power and authority of the House, he might have been disposed to consider the matter of such insignificant importance as to induce him to adopt the views of his hon. Friend the Member for Oxford. But he could not conceal from himself the doctrines laid down by at least two of the majority of the Judges who decided the question against the House. He could not avoid adverting to the imminent danger that would result from allowing principles so asserted to remain uncontradicted. After the experience the House had had, many Members might feel indisposed to have any of their privileges brought again before a court of justice; but the House of Commons was a fleeting and changeable body, and it was impossible to know what might be the opinion entertained by some future House of Commons. He apprehended that it was their duty, as they held a great trust for their successors, as well as the public, not to fetter and cripple any decision to which they might be disposed to come, by allowing, from any temporary or partial views which they might form on the subject, principles which assailed their privileges in so vital a manner to remain, without endeavouring in some way to obtain an opinion adverse to them, so as to prevent their being hereafter held to be authorities. He thought, therefore, that it was hardly open, under the circumstances, to adopt the course which he supposed would be recommended to the House by his hon. Friend the Member for the University of Oxford. When he saw the mode in which the warrant of the Speaker had been canvassed, 1216 when he saw the rules of construction which had been applied to it, when he saw the doctrines which had been directed against the privileges of the House, he could not but feel the danger of allowing them to remain unquestioned; and therefore he could not submit patiently and silently to such a judgment. Now, that brought him at once to the course which had been recommended by the Committee, namely, that a writ of error should be brought, to question, in a regular and legal manner, the decision of the Court of Queen's Bench. He knew it would be said by many hon. Members, that this would be an additional step in the wrong direction—that they had already submitted their privileges to the authority of a court of law—that they had suffered by such submission, and that they were again proposing to pursue the same erroneous and dangerous course. In the first place, he would recall to the recollection of the House, that this proceeding by writ of error was not new; it was adopted in the case of Burdett against Abbott. He knew it would be said that in that case the judgment was in favour of the Speaker, who was the defendant; and that the plaintiff there brought his writ of error, and that the House was compelled to follow the plaintiff to a Court of Appeal, and ultimately to the House of Lords, where the question was at last carried. But he must point out to the attention of the House, that when the Resolution of March, 1843, was passed, by which permission was given to the Serjeant-at-Arms to appear and plead, it was supposed that when the Court of Queen's Bench found that the warrant was issued on the authority of the House, they would at once decide in favour of the defendant. The House, therefore, anticipated a favourable decision. If that was so, it must have been aware that the plaintiff in the action would not be bound to acquiesce in the propriety of that decision; but that he might have brought his writ of error, as in the case of Burdett and Abbott. And he apprehended it could hardly be maintained by any hon. Member, that when the House agreed to go into a court of law, and suggest that it was a question involving its privileges, by which it expected at once to receive a favourable judgment — it could not be said, when the House did this, that it did not contemplate what might be the consequences of that judgment, and the course to which it might be driven. Therefore, although the case of Burdett and Abbott was a case in which the proceed- 1217 ings before the higher tribunals were originated by the plaintiff, that made no difference; for it must have been in the contemplation of the House that such might be the consequences resulting from this action. Now, it would be said that the step which the Committee recommended would be a proceeding in furtherance of an erroneous course which had already been adopted by the House, and in which they ought to stop at once. Stop and do what? Do nothing? [Mr. Hume: No.] The hon. Member for Montrose said no; he should like to learn whether it were possible, after the Resolution which the House had come to, of adjourning the debate, and after it had permitted, without objection or interference, the amount of the damages to be levied—he should like to know whether, after this, it were possible to stop, and, by a strong hand, punish the parties who had proceeded, without any objection on the part of the House, to obtain the fruits of the judgment? And if they stopped without taking any further step, it appeared to him that the danger which would result from such a proceeding would be inevitable; and, therefore, it could not be considered desirable that they should allow this matter to rest where it was. Was it, then, a proceeding in a wrong direction? They had allowed, on many previous occasions, parties who had been acting under the authority of the House, and who had actions brought against them, to appear and plead to such actions. They had submitted the question of their privileges to the judgment of the Court of Queen's Bench, and would they do more in a Court of Appeal? The case which was before the Court of Queen's Bench, and which was considered merely to involve a question upon which it was anticipated that the court would decide in favour of the House, would be precisely the same case, and involve the same question as that which would be submitted to a Court of Appeal. No new matters could be introduced. If the question of the authority of the House was raised by the pleadings before the Court of Queen's Bench, the same question of its authority would be raised before a Court of Error; and they might put it to such a court, whether, when the privileges of the House were involved, they would not consider that to be a sufficient answer in justification to the trespass complained of. And let them bear this in mind, that they had at present — if they were to come into collision with the courts 1218 of law on this question—only the judgment of the Queen's Bench. He would not say that the Judges of that Court were committed to a course of adverse judgment; but he was at liberty to remark that they appeared to have entertained very strong views with regard to the privileges of the House, and the assertion of those privileges; and, therefore, it would be desirable that they should have the opinion of some other court as to whether the views entertained by the House were correct, that no court of law had any power whatever to entertain such a question. He was extremely desirous that their proceedings should be recommended to the public. He was anxious that it should not be supposed that they were asserting a claim to unlimited power, or assuming a right beyond the Constitution. He was most anxious that the public should understand this question to be of the deepest interest to themselves, for all the useful authority of the House depended on the exercise of the privilege in question; and he was satisfied that the course which the Committee had recommended, and which he proposed that the House should adopt, would be extremely favourable towards bringing the public mind to a correct understanding of the real point in question. By taking the step which the Committee advised in this most important matter, they would, at all events, show that they had in a very temperate and forbearing manner, and—he hoped that the hon. Member for the University of Oxford would permit him to add—in due course of law, endeavoured to assert their privileges. If in the result it should be found that they were deceived in their expectations, and a Court of Error should take the same—he must be permitted to consider it — erroneous view of this question which had been taken by the Queen's Bench, it appeared to him that the public mind being impressed with notions of the importance of the question, and with the temperate and forbearing course which had been adopted by the House—if then they should be called upon to exercise any of those powers with which undoubtedly they were invested for the maintenance of their authority and privileges, they would have the sanction of public feeling, and be able to act with greater advantage in the matter. He confessed that he felt some difficulty in coming to this conclusion, from the circumstance of there being still three actions pending, in all of which the House had given permission to the defendants to 1219 appear and plead. In one of them the damages were laid at 100,000l.; and when he considered the nature of the trespass against Mr. Howard—that it was merely requesting him, he being in the lobby of the House, to attend at the bar, and that the jury had given the full amount of the damages which had been laid in the declaration—fortunately for the public, only at 200l. — it did appear to him that it was an indication of public feeling which he could not view without some apprehension. He therefore looked to these pending actions, and felt a difficulty in this case, which he should not have felt if they had not existed. If they should unfortunately be disappointed in their expectations, and find that the judgment of a Court of Error affirmed that of the Queen's Bench, they should know precisely the position in which they stood, and be able to judge more accurately of the proper, and prudent, and desirable course to be adopted as to this action. He was not insensible of the great difficulties with which this question was surrounded; he knew that after all it was but a choice of evils. It was unnecessary for him to state what would have been his opinion on the subject, if it had been brought originally before him; but he felt himself embarrassed by the proceedings which had taken place in the House, and by the situation in which they stood on this and the other cases. Upon the whole, however, he felt that there was no other course so prudent and desirable as that which he had ventured, on the recommendation of the Committee, to propose to the House. And although he felt that he had most imperfectly laid before them the reasons which had induced him to come to this conclusion, still his desire had been merely to open the question for the discussion of the House, in order that other Members of more weight and authority than himself might lead the House to such a determination as might be thought prudent and necessary. He should, therefore, merely conclude by moving that a Writ of Error be brought upon the judgment of the Court of Queen's Bench, pronounced in the case of Howard v. Gossett.
§ Mr. Hume
said, that the debate had not been resumed, inasmuch as the hon. and learned Gentleman had made a specific Motion. He had admitted that the House had committed a great error, and that all who had recommended the step which had been taken, were disappointed; 1220 and yet he recommended them to go on in the same course. The question was, whether they were to submit their privileges to any other tribunal, or maintain the right, which for ages they had possessed, of deciding what were their privileges themselves. The Solicitor General said that he anticipated a favourable decision, and, if so, the matter would be terminated; but he immediately added that if they should have an unfavourable decision, they should be in a worse position than before. It appeared to him (Mr. Hume) that they ought not to allow themselves to go into a court of law again, when they had already been so much disappointed. If they meant to assert their privileges, the right hon. Baronet the First Lord of the Treasury had said on a former occasion this was the time. If he thought so, why did he not proceed? The right hon. Baronet had said, that he was not willing to enter the lists on the present occasion—he would not encounter the difficulty now. Surely that displayed a want of moral courage. A more convincing speech than the right hon. Baronet had made the other night he had never heard: he clearly showed the evils of departing from the principles which he had recommended on that occasion. He should submit, that the House ought at once to adopt the course which they should have taken before. He did not see why they could not now affirm that the levy was a breach of privilege. If they had the power of saying it would be a breach of privilege before it took place, what reason was there why they should not say it was so now that the levy had been made? Upon that ground he should move, as an Amendment, to substitute for the Motion of the Solicitor General the following words:—That it is inexpedient to entrust the maintenance of the Privilege of this House to any other authority than that of this House itself.If this Amendment were adopted, he should be prepared to follow it up in such a way as he thought would be most effectual.
§ The House divided on the Question, that the words proposed to be left out stand part of the Question:—Ayes 78; Noes 46: Majority 32.
§ Mr. Roebuck
said, the Amendment having been disposed of, the matter of fact now remained for them to decide whether they were to pursue the course proposed to be taken by his hon. and learned Friend the Solicitor General, or whether any bet- 1221 ter course remained open to them. They should, in order to come to a correct decision on this question, look to the necessary consequences of the course which the hon. and learned Gentleman proposed to take. The deed had already been done. What had been effected was their act. The House was a party to the legal proceedings that had been taken, and they thereby supposed that the Court of Queen's Bench would give them credit for having used their power with every sense of the responsibility attached to it. He understood his hon. and learned Friend to say, throughout the whole course of his argument, that if there were any real difficulty in the case, it arose in consequence of the unhappy determination of the House to allow its Officer to plead to the action in the first instance. On that occasion the then Attorney General, the present Lord Campbell, proposed that that course should be taken, against the advice of the right hon. Baronet. He would acknowledge that the hon. and learned Gentleman the Solicitor General had veiled his meaning as he best could in the position in which he stood, by the use of certain courteous phrases; but the purport of what he had stated was clearly this—namely, that he had not much faith in the law of the Queen's Bench. That he believed the law of that Court to be bad, and that he expected the other Judges would think so too. The hon. and learned Gentleman, therefore, advised the House to go into another Court—to bring an appeal to the Court of Error. But he—suppose the Court of Error should come to the same erroneous conclusion to which the Court of Queen's Bench had already arrived—would maintain that in following the argument of his hon. and learned Friend, he had a right to use that term, what course, he would ask, were they then to take? They would be then in precisely the same position in which they now stood, with this additional difficulty, that they would then have all the Judges of the land against them, instead of four. He would wish to know what the people of England would then think of their proceedings?—whether they would think the House warranted in proceeding with a high hand then, though not now? The cry before the last ten years was, that the House used the tyrannical power vested in it by itself for tyrannical purposes. But what were these powers? The document which formed the ground of discussion in the Court of 1222 Queen's Bench was called a warrant. Now, he would deny that it was a warrant in the terms used in any of the arguments which had been relied upon in the matter. He would suppose this case. He would suppose that an invasion of the country were apprehended, and that that House, as the guardian of the public, thought fit, for the purpose of providing for the national defence, to call A B, or to call some ten persons before it. The Court of Queen's Bench would be applied to, and might turn round and say to the House, "You had no right to arrest these persons without stating in your warrant for what cause you did so; and you ought to allow the Queen's Bench to inquire into the sufficiency of that cause." If that course happened—and he had a right to suppose such a case—what would be the consequence? That House was not a tribunal; it was a body peculiarly constituted. There was nothing like it in any other part of the Constitution. They possessed their peculiar powers, or, as they were called, privileges, for special purposes, and if they allowed any single court of law to question these privileges, they broke down the whole structure of the Constitution. ["Hear, hear!"] Hon. Gentlemen did not call "hear," to any purpose, unless they were prepared to defend their privileges from the outset. They were now in a scrape. They knew that to be the case; and the course to be considered was, what was the best course to adopt in order to get out of it? He thought it would be far more dignified to admit at once that they had made a mistake in regard to their privileges, by permitting their Officer to plead to the action. He thought this course infinitely preferable to that of trying one more attempt to get out of their difficulty by proceeding further at law. He was sure that his hon. and learned Friend would not suppose that he intended any disrespect towards him, when he said, that the course proposed to be taken would be, after all, merely a pettifogging attempt at getting out of the scrape. It was, in effect, giving themselves one more chance of a verdict in their favour from the fifteen Judges, after the Court of Queen's Bench had already decided against them. He would prefer that they should stop at once. Let them admit that they had made a mistake in regard to their privileges, and let the 200l. go by the board. But there were three other causes brought against their Officer, in one 1223 of which damages were laid at 100,000l. In regard to these actions, he would say, let them at once assert the privileges of this House. Let them say, "It is true we have made a mistake. We cannot run after the inferior instruments of the law, and punish them in case of a conviction; but let every man amongst them know that if, in any case whatever, the least motion is made to question in a court of law the acts of this House, that man shall be laid by the heels." He did not care who the party might be. He did not care whether the individual were plaintiff or attorney in the case; but he would say that, no matter who moved in it, or what the court might be, they should bring him before the House, and commit him to prison. Now, he was prepared to adopt that course; and he would say, unless the House were prepared to go the whole length which he had mentioned, they had better give up their privileges at once. There was no shuffling, no hazard in the course which he recommended. There was no continuing the game in the mere anticipation that hearts might possibly turn up trumps. Now, he would suppose the case he had already put. He would suppose the case of a threatened invasion of the country, and that the advisers of the Crown in that House recommended, in order to adopt measures of security more effectually, that the House should exclude strangers from hearing their proceedings. Suppose these men [the hon. and learned Gentleman pointed to the reporters' gallery] were to be also shut out, and that the House proceeded to deliberate with closed doors. Suppose these circumstances to take place, and that the ten men suspected of being implicated in the intended invasion were brought before the House, would it be contended that the Court of Queen's Bench, if they were to be instantaneously brought before it, was to have a right of inquiry how far the House was justified in the course it had taken? [An hon. Member: Suppose we had them all shot?] He did not take so sanguine a view of the extent to which the House would carry its privileges as the hon. Member. But, under the circumstances which he had just mentioned, would it be contended that Lord Denman should be the arbiter of the privileges of that House? Was the noble and learned Lord to have the right of saying to them, "You were very unwise to sit with closed doors, or to send for these men at all. You were quite 1224 mistaken, and the Minister of the Crown was quite mistaken, in supposing that any conspiracy existed, or that any invasion was intended, and you must therefore pay the piper for what is done." His answer to that supposition was this: Let them at once drop altogether the action already decided, and make a resolve to maintain their privileges inviolate in future. Let them allow no party to proceed in any one of the other actions that had been brought, and declare their intention to protect their privileges in future. The hon. Member (Sir Robert Inglis) shook his head, as a sign, he supposed, that he was not prepared to go that length. But he would put this case. He would suppose that the Court of Error should give judgment against them, and then he would ask his hon. Friend what course he would recommend? How were they to stave off the mischief which would then come upon them? They might have the decision of the Court of Error against them, as the judgment of the Court of Queen's Bench now was; and how were they then to get out of their difficulty without adopting those strong measures? He had a very decided feeling about the manner in which the Judges of the land had ever dealt with the privileges and liberties of the people. He would make bold to say that it was not in the Court of Queen's Bench the liberties of the people of England had been fought for and gained. Those liberties had been achieved in another place; and it was in that other place that he would still have them defended. The Commons of England attained the right and privileges of the commonalty of this realm, and on them, as the successors of the Commons of England, ought still to rest the great privilege, when they should be assailed, no matter by what party, of defending the liberties of this country
§ Sir Robert H. Inglis
said, in one point he agreed with the hon. and learned Gentleman who had last addressed the House, that whether to-day or to-morrow, whether this year or five years hence, that ultimate decision must be attained, to which the hon. and learned Gentleman had specially called the attention of Her Majesty's Government. The House must make up its mind to the alternative, not of a writ of error—not of an appeal to the House of Lords, but—supposing these tribunals were adverse to what are called the privileges of that House, to the course 1225 which, under such circumstances, might be their duty. He trusted that it would be prepared to take what he thought a more peaceful way than the fulminating proceeding recommended by the hon. and learned Gentleman. On a former occasion, the course to which he was adverting had been taken when what were called the privileges of the House were assailed; and, therefore, in considering the violent measure which the hon. and learned Gentleman proposed, they ought not, he thought, to lose sight of the more simple and appropriate measure which had then been adopted with the general concurrence of the House. He referred, of course, to proceeding by legislation, as had been done in the Printed Papers' case. The hon. and learned Gentleman had spoken of bringing up in custody to the bar of the House the plaintiff, or the attorney, or any person who might bring the authority of that House before a court of law: but he did not take into his consideration the fact that the legal proceedings might be commenced at a period of the year when Parliament might not be sitting. It might be very well, on the principles of the hon. and learned Gentleman, to adopt such a course as that recommended, if the action were commenced in the month of June, or before the House rose at the end of the Session. But supposing the action were brought in the month of November, at a time of the year when the entire proceedings could be brought to a conclusion before Parliament again met, what course would then he taken? The hon. and learned Gentleman did not say what he would do in such a case with the Judges before whom the case would have been heard.
§ Mr. Roebuck
explained. What he had stated was, that the House should, if the emergency arose, commit every person who should have interfered with their privileges, and who were not exempted from arrest by being privileged parties—namely, Peers of the realm.
§ Sir R. Inglis
In that case the hon. and learned Gentleman would go to the extent of committing to custody such men as Mr. Justice Wightman and Mr. Justice Patteson—[Mr. Roebuck: I would]—or Mr. Justice Coleridge, or any of the other Judges; while he would leave on the Bench the very Judge who had taken the strongest part in reference to their proceedings, namely, the Lord Chief Justice of the Queen's Bench. But he would ask, would not Mr. Justice Coleridge, suppose he were 1226 arrested, move for a writ of habeas corpus, and would he not be then brought up before the Lord Chief Justice of England? Would that noble and learned Lord follow the constitutional principles laid down by the hon. and learned Member for Bath, or would he not rather liberate his learned Brother in the face of these privileges. [Mr. Roebuck: No.] He heard a solitary "No" from a great legal authority opposite; but he was, notwithstanding, convinced that the singleness of heart which characterized the Lord Chief Justice of England, now sitting on the Bench, would not fail him, should the contingency to which he adverted, hereafter arise. He maintained, therefore, that the remedy of the hon. and learned Member was in any case insufficient for the real requirements of his case, inasmuch as it would not be at all applicable to one-half of the current year. As soon as the House had not a collective existence, so soon might any attorney violate with impunity what were called the privileges of that House; and so surely as that violation took place, would they fail to provide a remedy for it. His hon. and learned Friend the Solicitor General had stated the matter so clearly and conclusively in his speech, that those who concurred in his views could scarcely wish to add anything to his argument. In the beginning of his address, especially, his hon. and learned Friend had spoken altogether in accordance with the minority of the Committee on Printed Papers, over which his right hon. Friend the Member for Montgomeryshire (Mr. C. W. W. Wynn) presided. As one of that minority he might be permitted to say that he had never sat on any Committee in which—whatever might be the discordance of opinion among them—so many men met together with a more earnest desire to discharge the duty imposed on them. It was one of the rare instances in which a Committee never sat with less than ten Members present, and they had in some instances fourteen Members, and on two occasions fifteen, or the entire number of the Committee, in attendance. He believed that the warrant on which the opinion of the Judges had been taken was a warrant in itself insufficient for the purpose for which it had been issued; and though one of the Judges appeared to have gone further than the others in this view of the privileges of the House, he was content to take the judgment of the Court as he found it. He would, therefore, wish the House to act 1227 as he would act himself in his private capacity under similar circumstances, and where there was a bad case, not proceed further with it. For these reasons he could not concur in the course proposed by an hon. Member opposite, and adopted by the learned Solicitor General, namely, that the proceedings should be carried to the Court of Error. Neither could he concur in the plan recommended by the hon. and learned Gentleman the Member for Bath respecting the three actions now pending in the Queen's Bench. The House had already permitted its Officer to appear to these actions; and they must, as a preliminary step to the strange course recommended by the hon. and learned Gentleman, rescind that order which they had before given. But he apprehended that the view contended for by the hon. and learned Gentleman was, that the warrant of the Speaker should, as soon as produced, of itself stay all proceedings in any court of law whatever; that the mere declaration of their Officer that he carried the Speaker's warrant in his hand, should be sufficient to save him from all interference by any court. He believed that was putting the proposition of the hon. and learned Member in a fair view. The hon. and learned Gentleman must be prepared to go the length of maintaining that a party declaring in the court that he held the Speaker's warrant in his hand, was a sufficient justification of any act which that warrant might order, whoever might complain of it; and that if the Lord Chief Justice said, "Hand up the warrant, that I may examine it," he would be violating the privileges of that House. The man should, according to the principle laid down by the hon. and learned Member for Bath, be entitled to reply, "No: I hold in my hand the warrant of the Speaker of the House of Commons of England;" and be thus, on his mere ipse dixit, able to defy the Lord Chief Justice of the Queen's Bench. The noble and learned Lord might, in the exercise of his sworn duty, require the warrant to be laid before him, and he might then say, that every other warrant contained a statement either of the cause of its being issued, or the term of imprisonment, or the particular tribunal, and time of trial, in respect to which it was issued, as every other warrant did; and that as that warrant was imperfect in these particulars, it could not be admitted as a sufficient justification of the arrest. It had been alleged equally wisely and wittily by an anonymous writer 1228 in the Times, about a month ago, that if the principle for which the House of Commons contended were just, it would have been sufficient to insert the words in the warrant "catch Howard," to carry out any proceedings which the House might choose to adopt. He did not know how that assertion could be controverted by the hon. and learned Gentleman: and if it could not be, it was clear that House would hold absolute control directly over the liberties, and incidentally over every other privilege of every person in this kingdom, who, unfortunately for himself, was not a Peer of the realm. If that House had the power to suspend the operation of the Habeas Corpus Act in the case of a party whom it arrested on warrant, the privileges and liberties of the people of England would then be at the mercy not even of a united House of Commons, but of a fluctuating majority in it, perhaps not exceeding ten or twenty, such as constituted the strength of Her Majesty's last Administration. To meet a case of extreme danger like that which the hon. and learned Member for Bath had supposed in the course of his speech, Parliament, under such circumstances, might deem it right to suspend the Habeas Corpus Act, or the Ministers on their own responsibility might suspend it, and seek afterwards for indemnity by Act of Parliament; but, unless by the previous or subsequent sanction of Parliament, he could not consent that the writ of habeas corpus should be suspended, and that the privileges of all or any one of his fellow-subjects should be placed at the disposal of a majority of the House of Commons. Could the Queen issue any such warrant? [Sir T. Wilde: The House of Lords could.] Did the hon. and learned Gentleman pretend to say, if a party against whom the House of Lords might issue a warrant should claim his writ of habeas corpus, and be brought up before Lord Chief Justice Denman, that the Lord Chief Justice of England, and his associates on the Bench, would fail to examine the warrant? [Sir T. Wilde: Hear.] He apprehended by that cheer that the hon. and learned Gentleman did make such an assertion; but he asked, could any one quote an instance in which the writ of habeas corpus had been refused on the ground that the Lord Chief Justice was of opinion that he had no right to examine the warrant? for that was the point at issue. In the case of the Sheriffs, the parties there had been remanded to their confinement because 1229 the warrant on which they were committed appeared not to exceed the powers of the authority by which they were committed. It was because the warrant which was issued in the case of Thomas Burton Howard had covered more than the mandatory part of it proposed to cover, that the Lord Chief Justice and the Court of Queen's Bench had ruled in favour of Mr. Howard, and against this House. The House would observe by the proceedings of the Committee, that they found that in the collection of forms of warrant before them, there were none of them applicable to all the emergencies that might severally arise. Now no lawyer would say that the judge of any court could issue a warrant pro re nata. Would it then be inconsistent with the dignity of the House or with a due regard to their privileges, if they condescended to adopt the same course here? and if the law officers of the Crown, with the assistance of Her Majesty's other Counsel, being members, would but prepare the proper form of warrant, with the sanction, of course, of the House, which the circumstances of the case would call for? In such case he did not think that the dignity of the House would be in the least degree affected, and the rights of their fellow subjects would be secured. The difficulties which they then encountered in the courts of law would not then arise. At different periods during the last ten years, that House had claimed privileges so transcendent, that if the reasons of those who most forcibly contended for them, were to prevail, scarcely any other authority would exist in the country. He had heard one hon. Member, not now in his place, state in a style of eloquence peculiar to himself, "We are everything;" but he reminded that House that they were but part of the commonalty of the realm; and that the rest of their fellow subjects were content to live, as they had lived, under the government of the law, and under that mitigated administration of the power of that House which had prevailed for forty years preceding the last ten years. That power should be limited to the necessity of the case; and although there might be danger, during the infancy of the House of Commons, from the power possessed by the other branches of the State, such danger no longer existed, and had long ceased to exist; as no danger could now arise to the House, either from the Sovereign or the other House of Parliament. He objected to the claim of these privileges, 1230 as they only gave a power needless as regarded the legislative functions of that House, and needless also as regarded its administrative functions. On this ground he had, during the last few years, taken, he hoped moderately, but still firmly, steps to induce the House to lessen its claims of privilege. The hon. Member, however, to whom he had last adverted, would go the extreme length on the subject of privilege: and he had even adopted the case which had been shadowed out by another Gentleman, namely, that if blood were shed in endeavouring to enforce a warrant of the Speaker, that he should be prepared for the result. Now, in endeavouring to execute one of these warrants, suppose the Officer of the House to be killed by the party against whom the warrant was issued in making its execution;—suppose the party to be taken before the Court of Queen's Bench, and that Court to determine that the party made a just defence in resisting the execution of the warrant? what then would become of the proposed proscription of the Court of Queen's Bench to take part in any question regarding the privileges of that House? Did the hon. Member mean to say that inquiry into the cause of the death of the party should not go to the jury? Although they might resist the authority of the Court of Queen's Bench to investigate the validity of the warrants of the Speaker, yet, in case of death, they could not prevent inquiry into the cause of that death in the court even of the coroner. He, therefore, said, that in such a case some court high in law, or low in law, must investigate the act of the individual by whom this death was occasioned. In such a state of things it was clear that, on the one hand, the personal liberty of all their fellow subjects was involved; and, on the other, that the lives of persons were hazarded by endeavouring to enforce the privileges of the House. He would ask whether the Members of that House would arrogate to themselves powers which they would not tolerate in the Sovereign? It was clear that the Sovereign had no more power to issue a warrant in the execution of which death might occur, and into which no court was to institute inquiry, than any individual in this country. In case of death in the execution of such a warrant, the investigation of the cause of death must come before some tribunal. In such a case then, whether they would or not, they must have the validity of the warrant tried, if not by a court of civil jurisdiction, at any 1231 rate before a court of criminal jurisdiction, if a fellow subject were killed. He repeated, then, that the remedy of the hon. and learned Member for Bath was insufficient; but, even if otherwise, was unnecessary, as he did not believe that they had yet exhausted all the better and more constitutional means of settling the question. He could not, consistently with the dictates of common sense, admit that a warrant signed by the Speaker of that House was sufficient to stop all inquiry before the Court of Queen's Bench. It appeared to him that even the Solicitor General had almost censured the first Court of the kingdom in its administration of the law; particularly in his comments on the opinions of the Lord Chief Justice and on those of Mr. Justice Coleridge. Was that House, he would ask, to take upon itself the power of censuring the Judges of the land? [Mr. Escott: Hear, hear.] His hon. and learned Friend the Member for Winchester cheered; but he contended that when the House, without any charge of corrupt motives, took upon itself to censure the Judges, it was going beyond its proper functions. In the former case, the House, conjointly with the other House, might move an Address to the Crown to remove them. It was their constitutional right and duty: but, where no corrupt motive is for a moment suspected, the Mouse ought, like all their fellow subjects, to respect the law and its administration. His own intention was, as the hon. and learned Member for Bath had intimated that he should not propose any Motion, to propose some Resolutions as an Amendment to the present Motion; and these Resolutions would be the same, with merely a change of form, as those which he had proposed to the Committee. He should confine himself to the first four Resolutions which he had there proposed. He, therefore, would submit the following propositions to the House:—1. Whereas, it is the privilege of every subject of the realm, when imprisoned under any authority, warrant, or colour of law, to sue out his writ of habeas corpus; and, whereas, on the return of such writ to the Court which shall have issued the same, the officer detaining the said party is bound, under heavy penalties, to produce the warrant which is alleged to authorize the detention of such subject, in order that the same may be duly examined by the said Court, and that the said party may, if imprisoned contrary to law, be duly discharged; and, whereas, for this purpose, it is necessary that each warrant shall set forth the cause of such imprisonment; and 1232 whereas, if any authority can, by the law and Constitution of this realm, issue any warrant directing any officer to seize persons therein named, for no cause assigned, and if the Court before whom such parties may be brought by writ of habeas corpus, be withheld, by any Order of this House, from examining the said warrant the signature of Mr. Speaker thereto being held to bar all inquiry into the nature of the offence which may be charged against the party, or even into the formal validity or technical accuracy of such warrant, this House considers that the writ of habeas corpus would thereby be practically withdrawn from their fellow subjects; and that a power which, since the glorious Revolution of 1688, no Sovereign of England hath ever claimed by Common Law, or otherwise than by special Act of Parliament, might be exercised at the arbitrary will of the Lower House of Parliament, to the great disquiet of the other commonalty of the realm.2. And whereas, it is nevertheless essential for the due discharge of the functions of the House of Commons, as the grand inquest of the nation, that it should possess summary powers for enforcing the attendance of their fellow subjects—the commonalty of this realm, before the House; while yet it is not essential that such powers should be exercised otherwise than in a form and manner recognised by law; and whereas, the form of the warrant which constituted the subject of the action, Howard v. Gosset, now under consideration, being a warrant to take into custody the body of Thomas Burton Howard, differs from all other forms heretofore used, with one exception; and whereas, in the instance of the said warrant, the object of which is alleged to have been to bring Thomas Burton Howard to the bar of the House, this House did, in addition to the issue of the said warrant, dated 4th February, 1840, order and direct, by a separate and subsequent Resolution, namely, on the 6th February, 1840, that the said Thomas Burton Howard be brought to the bar of the House, thereby implying that the said first warrant for taking the said Thomas Burton Howard was incomplete, and, without such second warrant, insufficient for the said last-mentioned purpose; Resolved, that every warrant to apprehend, which shall hereafter be issued by Mr. Speaker, under the authority of this House, do specify whether the party named therein be to be committed for contempt, or be to be brought in custody to the bar of this House to be examined, or to answer any, and what charge.3. And whereas, it hath appeared in evidence before the Committee, that there is no collection of formulas of warrants to be issued, and no complete record or entry of warrants which have been issued. Resolved, that this House will cause certain formulas of warrants to be prepared, in blank, under the advice of the Law Officers of the Crown, and Her Majesty's Counsel, being Members of this House, and with the sanction of Mr. Speaker, which 1233 warrants may be always in readiness for each particular exigency.4. Whereas, this House did, on the 15th March, 1843, order that the Atorney General do defend the action brought by Thomas Burton Howard against the Sergeant-at-Arms attending this House, the cause of which action was alleged to have been an illegal imprisonment of the said Thomas Burton Howard by the said Sergeant-at-Arms, under a certain warrant issued by Mr. Speaker, by the authority of the House; and whereas, this House did thereby submit the validity of such warrant to the judgment of the Court of Queen's Bench; and whereas, the judgment of the said Court hath been passed against the validity of the said warrant, and in favour of the plaintiff on the record; and whereas, this House did, by the Order made on the 6th of February, 1840, for bringing Thomas Burton Howard to the bar of the House imply, as aforesaid, that Mr. Speaker's warrant, of the 4th of February, 1840, was not valid for the purpose to which it was applied, namely, for bringing the said Thomas Burton Howard to the bar, and that accordingly the said warrant was, in the opinion of the same House, under the authority of which it was issued, invalid, as it was subsequently held by the Judges in the case in question; Resolved, that the House will not take any steps for reversing the said judgment.He certainly attached the greatest importance to the last of the Resolutions; but after the length of time at which he had addressed the House, he would not do more than propose his Resolutions as an Amendment, without taking a division upon them.
observed that his hon. Friend could not at that stage propose his Resolutions as an Amendment.
§ Sir R. Inglis
said, that if that were the case, he was sorry that he had taken up so much of the time of the House in reading them, but he certainly should request the opinion of the Speaker on the subject.
§ Mr. Speaker
said, that the hon. Member could not then propose his Resolutions by way of Amendment, as the House had decided on the recent Amendment, that the words proposed to be left out stand part of the Question.
§ Mr. Escott
observed that if he thought the House had submitted the question as to the validity of the warrant to the judgment of the Court of Queen's Bench, and that that Court had decided on that point, the question would stand on a very different footing to what it did. He perfectly recollected the debates which took place in 1843, when the House directed its Officer to plead to the action; and he was convinced, from what then took place, that it never 1234 contemplated submitting the question as to the validity of the warrant to the judgment of the Queen's Bench; but they merely submitted the warrant as a sufficient authority for the proceedings of the Officer of the House. It was understood that the Judges, in case the privileges of the House were pleaded, would at once say that they could not interfere further in the matter. Now, let them consider how the facts of the case stood. The House had directed its Officer to plead to the action, and it was understood that the plea of the authority of the Speaker's warrant would be final. The plaintiff demurred to the plea; and, therefore, admitted the facts of the case as regarded the Speaker's warrant. The Court of Queen's Bench, by the course which it had taken with respect to the argument in the demurrer, seemed determined to thwart, and quash, and destroy the privileges of the House, against the law, and in a manner in which they had no more power than over a court of quarter sessions or any other small court. The plea of these privileges was an answer, in point of law, to all further proceedings. Surely, they should not stop at the decision of the Court of Queen's Bench, but go to the Court of Error, and see whether the Judges of the other courts could be guilty of the absurdity of the Queen's Bench in saying that the privileges of that House did not give them authority to enforce them. They might prepare for any contingency that might arise, and should be ready to act accordingly. He was sure that if they determined to defend their privileges, they would be backed by the opinion of the people of this country. It was his firm opinion, that a question of greater importance to the whole country could not be brought forward; and everything depended on the decision they came to. In 1843, when they pleaded to the action, they never contemplated giving way because one court should decide in a way which was adverse to their just claim of privilege; and that, therefore, they would not, in 1845, go to other courts. He did not believe that they would be in a worse situation if all the other courts were against them. Let them know who took one view of the question, and who took the other. He did not believe that they would endanger their privileges by so doing, for it was clear that they must ultimately take adequate steps to defend them, for the benefit of the people. His hon. Friend the Member 1235 for the University of Oxford said, that it was not becoming the dignity of the House to question the conduct of the Judges. He believed that it was one of the most important functions of the House to do so; and above all, when they proceeded to question and deal with a warrant of the House of Commons as they would with one issued by any petty court, and that, too, on a point with respect to which the House of Commons alone had the right of forming a judgment. Surely the hon. Member for Oxford knew that it was one of the highest functions of Parliament to move an Address to the Sovereign for the dismissal of Judges; and when was there a more fitting occasion for this than after having gone through the different Courts of Judicature, and found that the Judges meant to question the undoubted privileges of Parliament? He confessed that he knew no better occasion for doing so; and if the majority of the Court of Error thought fit to question the privileges of the House of Commons, on the same principle in which it would look into the warrant of the magistrates in petty session, it then would be for the House to take efficient steps to vindicate its privileges. If the question now arose for the first time, he felt that he should much doubt whether it would be proper to vote that the Officer of the House should plead to the action. The reason why he was now in favour of carrying the matter to the Court of Error was, that the House had pleaded before; and that, therefore, they should not stop where they were, because three out of four Judges of the Court of Queen's Bench were against them. The bold course would be not to avail themselves of the forms of the court, as they did in 1843, but to assert the authority of their privileges with effect, through the means in their own possession. As he understood the matter, the Court of Error in the Exchequer Chamber, was not the final court of appeal, but that the case might be carried to the House of Lords. Then came the very important question as to whether the House of Lords was to be allowed to decide as to the privileges of the House of Commons. If an appeal was made from the Court of Error, the House of Lords, as a matter of right, might be called upon to decide on the privileges of that House, as had been done in the Court of Queen's Bench. He did not believe that if the case came before the House of Lords, that that House could 1236 put down the privileges of the Commons of England. The hon. and learned Member for Worcester shook his head, but surely he was not afraid of any such result? Difficult as was the case, he did not think that it should deter them from going on in a straightforward and bold line, until they finally secured their privileges, and that they should, in the first place, appeal from what he believed to be the illegal decision of the Court of Queen's Bench on the subject.
§ Mr. Serjeant Murphy
could not suppose that the country at large could be induced to regard the privileges of that House with particular anxiety, when it saw from the state of the House that it appeared that it set so little regard on them itself when a question arose between the authority of the tribunals of the country as to the maintenance of their privileges. At that moment there was exhibited in the thin attendance of Members such a state of things that, if it was to be taken as an indication out of doors of the feeling of the House on the subject, it would lead to the inference that it was utterly indifferent to the maintenance of its privileges. Although there was a paucity of Members in the House at that moment, yet, from the presence of the right hon. Baronet the First Lord of the Treasury, they might expect to hear from him a declaration on the part of the Government as to the course which it intended to recommend the House to adopt. When the first question of privilege arose connected with the case in 1837, namely, that of Stockdale and Hansard, he had not the honour of a seat in that House; but he was not insensible to the importance of the question which then agitated the country, and of the conflict which had arisen on it between the House of Commons and the tribunals of the land. He had had the advantage and satisfaction of hearing the arguments addressed to the Court of Queen's Bench in vindication of the privileges of that House, and although he attached considerable value to those arguments, he could not help feeling at the time that a precipitate step had been taken which should not have been; and that, notwithstanding the ability of the learned persons engaged for the House, still the tendency of that course was to fritter away the privileges of that House. His hon. and learned Friend the Solicitor General had stated to the House the present state of the case, and the proceedings which had 1237 taken place in the Court of Queen's Bench. It was true that the Court of Queen's Bench did not pretend to decide on the privileges of that House; but the question arose by the House not allowing the matter of privilege to be placed before that Court; and when the Sergeant-at-Arms made an arrest, and acted under the warrant of the Speaker of the House of Commons, and an action was brought against him for having so done, he was directed to plead that warrant. Under these circumstances it became necessary, in the course of the proceedings, that the warrant should be produced. When this warrant did appear, the question should have been decided on what appeared on the face of the warrant. The warning of the right hon. Baronet as to what might arise if they allowed the Officer of that House to plead, was almost prophetic as to what followed on this point. He conceived that the course taken by the Court of Queen's Bench was an invasion of the privileges of that House. What was their meaning, in submitting to the Court of Queen's Bench the warrant of the Speaker—to announce that the proceedings had taken place under the authority of the privileges of that House, and that their warrant should not be placed on the same footing as one issued by any justice of the country in petty sessions for a misdemeanour? This, certainly, was not the meaning which the House intended to attach to its directing the Sergeant-at-Arms to plead. The Court of Queen's Bench, however, had asserted that the House had assumed an authority by the means which they had taken, which they could not support. Now, was it not notorious to that Court, that this House was an independent court of itself; that it was the great inquest of the kingdom; and that it was the sole representative of the whole commonalty of England; and that it, as every independent tribunal, claimed and possessed the right of being the only interpreter of its own privileges? He contended, that immediately the Court of Queen's Bench saw the validity of the claim of privilege, as shown on the face of the warrant of the Speaker of the House of Commons, that it was bound to obey it. His hon. and learned Friend had said, suppose that a case involving a decision of the House of Lords was brought before one of these courts, how would it act if the authority of the House of Lords was pleaded? Under these circumstances, would 1238 not any court of law stop the proceedings, and say that it could not proceed in the face of the decision of the House of Lords? It had ever been one of the claims of that House that it had the inherent right of taking cognizance of its own privileges, and that they were not to be set aside because the Court of Queen's Bench chose to disregard the great principle involved, and proceeded to decide on purely technical grounds, and fritter away the privileges of that House. The hon. Member for Oxford told them that under the circumstances of the case, the question was not as to an interference with their privileges; but that they were calling in question the conduct of the Judges of the land. Now, on this subject he would suggest a point which seemed appropriately to apply to it. When they came to that House at the opening of every Session, one of their first acts was to claim from the Throne that they should have all their privileges preserved to them—that they should have perfect freedom of speech, and all the other privileges which had ever been held by their predecessors, without the interference of the Crown. Was not this a proceeding of almost immemorial usage, which was followed at a time when the relation of the Judges to the House of Commons was very different from what it now was, and when the Judges were removable at the pleasure of the Sovereign? Were they now to be told that a new light had broken in on them, and that a modern system was to be adopted, and that, they might exercise their privileges provided they always submitted them to the decision of the Judges of the land, as to the form and validity of the warrant? As to the Report, it appeared to him beset with inconsistencies, with those inconsistencies which always beset people who go to work shilly-shally, instead of grappling at once with principles. The Committee, referring to the cases of Burdett and Abbot (which, in common with that of Stockdale and Hansard, he looked upon as an entire mistake), said that in neither case had the House the least intention of submitting their privileges to a court of law; but what of that, when the court of law regarded the House as doing so, and acted upon that interpretation? When, out of doors, a man had referred his case to a lay arbitrator, and the lay arbitrator giving an award contrary to law, he went to a court of law, the court of law said, "We can't help it, you chose 1239 your own arbitrator, and you must submit to his decision." So, when the House went and submitted its case to a court of law, and then rejected its decision, lookers on would say, "You chose your own arbitrator, and must abide by his decision." He was of opinion that the course proposed by the hon. and learned Member for Bath was the really manly one. The House had committed a mistake—a gross and grievous mistake — having done so, let them pay Mr. Howard his 400l., so as to avoid coming into any further collision with the courts of law; but let them at the same time declare most emphatically and unequivocally, that, for the future, they would come into very decisive collision with any court which should venture to question their authority. This was, in his opinion, the course to be adopted at once; for even if they were to actupon the Report of the Committee now, they would, ultimately, be obliged to take decisive measures for the maintenance of their privileges under, perhaps, less favourable circumstances.
§ Viscount Mahon
said, it was with great pain he beheld their old debates on the question of privilege revived. When he remembered what had passed in the House—and out of it—a few years since, and how little the course we then took had added to our real power and reputation, he had hoped that no occasion would have arisen again to kindle the flame of discord and animosity which had died away after the former discussion. But while he referred to the former discussion, he could not help adding the expression of his deep regret at the absence from the present discussion of his hon. and learned Friend the Member for Exeter—of him whose eloquent voice had been so often heard on this subject—that eloquent voice which they might never hear again. With respect to the question immediately before the House, he did not think that the course proposed by the Solicitor General, and approved by the majority of the Committeee, involved any violation of principle. It was perfectly open to us, as it was open to the meanest suitor of the realm, to appeal to a superior court, if we thought ourselves aggrieved by the sentence of an inferior tribunal. In this there could be no violation of principle. But he (Lord Mahon) still objected to the course proposed, not indeed on point of principle, but on the ground of its being inconsistent 1240 with prudence and good policy. In his opinion, the hon. and learned Member who had just sat down appeared to have taken an erroneous view of the condition in which that House stood towards the Judges. The Judges had laid down, in the strongest terms, that in this case they did not design or desire to trench on the privileges of the House. Mr. Justice Wightman and Mr. Justice Coltman both laid the strongest stress on the fact, that their judgment went on the technicality of the case, as regarded the terms and wording of this particular warrant of the House. He, as a Member of the Committee, made it his business, in the first instance, to inquire into the grounds of the allegations against the validity of the warrant; and the decision to which he came in his own mind was, that the warrant was not in conformity with precedent; that it bore strong marks of being drawn up in haste and carelessness, and was by no means as good a warrant as they could draw. Why, then, going to a trial of appeal, on a warrant of which the validity was, to say the least, most doubtful, was surely most unwise; it was like marching to a battle with a broken sword, or beginning a lawsuit with a flaw in your deed. He must say, he considered it would be more expedient for the House to wait for some case where their warrant would be in accordance with precedent, and free from the errors of haste and inadvertence; so that in any decision of the courts of law a favourable issue might reasonably be expected. Again, he denied that in every case the House was the sole judge of its own privileges. In the case, for example, which had been supposed in the course of more than one former debate, of violence being resorted to in resisting or in executing a warrant—suppose blows to be struck, or limbs broken, or life lost, would the privileges of the House protect the party? Would they shield a murderer from punishment? The question of excess, therefore, might arise, and it appeared to him to be one of great importance in this discussion. He put that question most especially to the learned Member for Worcester (Mr. Serjeant Wilde); and he hoped that he would not pass by that question in any remarks with which he might favour the House that evening. A still more important consideration was, that in asserting their privileges, they should rest them on public opin- 1241 ion. They certainly had not that advantage now. In reference to this part of the subject, he could not help quoting the words of the right hon. Member for Edinburgh, who said, in 1828, in an essay on Mr. Hallam's Constitutional History, since published with the sanction of his name—The privileges of the House of Commons—those privileges which, in 1642, all London rose in arms to defend, which the people considered as synonymous with their own liberties, and in comparison with which they took no account of the most sacred and precious principles of English jurisprudence—have now become nearly as odious as the rigours of martial law.It was certainly quite open to that right hon. Gentleman, or to any other Member, to contend that these expressions applied only to an unreformed Parliament, and were no longer applicable at the present time. But he greatly feared that they, the reformed House of Commons, had not so very greatly endeared themselves to the people, as to lay much stress on this distinction; and he thought that the remarks of the right hon. Member for Edinburgh were at least as applicable now as at any former period. It was true that the privileges of that House were now used for the most honourable purposes; but that had not always been the fact. He need not refer to the case in which the House declared it a breach of privilege to shoot Lord Galway's rabbits, or to numberless other instances, in order to show that the privileges of the House were not always used for public purposes. The House ought to have the power to inquire into grievances; but the gross abuse of that power in former times had very much weakened its influence. He wished the House to bear in mind that the case of Lord Galway's rabbits was by no means, as some people seemed to think, a single or insulated instance; the Journals of that period teemed with such. There were the fish of Mr. Jolliffe, the trees of Mr. Hungerford, the menial servant of Lord Palmerston, and many more, all brought under the protection of privilege; in short, he alleged, and he challenged contradiction on that point, that such was the general course and tenor of all the precedents in the reign of George II. He thought, therefore, that it was desirable that they should wait till some great question should arise where the dignity of the House was really affected, and then the House would have 1242 the people with it. But this could not be said of any proceedings connected with the case, already so unpopular and hateful, of "Stockdale and Hansard." Another counsel he would respectfully but earnestly offer to Her Majesty's Government was, to have recourse to legislative measures. It was a course which he would urge, not only on the Government, but on the noble Lord the Member for London, who had shown such great ability and clear discriminating judgment in the Committees which sat upon this subject. Instead of vague and fluctuating claims of privilege, let them have moderate, but known and certain, rights of law. In the case of "Stockdale and Hansard," they had recourse to legislation, and they had no reason to regret it. By means of legislation, they would attain the great advantage of ceasing to array themselves against the courts of law, and to disparage instead of supporting those eminent men who administered public justice; in whom they would then find, not the adversaries of their rights, but, on the contrary, their most watchful guardians, and most constitutional allies.
§ Mr. C. W. Wynn
was understood to say that he felt it would be exceedingly difficult for him—even with the indulgence which had been granted to him of speaking from his seat—to do justice to the arguments which pertained to the question before them. He should, however, be sorry, considering the situation which he had held in the Committee, to appear to shrink from stating his opinion to the House. If he could agree with the noble Lord who had spoken last, that this question was one of little importance, and that the decision of the Court of Queen's Bench could be passed by, he might be disposed to think, with him, that it would be more expedient to reserve their strength for a more urgent occasion. But the present case appeared to him to strike at the very root of their privileges, and to have a tendency to destroy that bulwark by which alone they could be maintained—viz., that that House, and that House alone, was competent to consider questions of this nature. If he were inclined to go into details, he could easily show that if they were to submit to a law court examining into the validity of one case, they would have to submit in another. It was almost their daily practice to sum- 1243 mon persons to attend at the bar of that House on a particular day, and if the person failed to attend, to order him into custody. That was a necessary exercise of their privilege. There were numerous cases to bear out his assertion that such had been their constant practice; and he was certainly surprised to hear the noble Lord who had spoken last, and the hon. and learned Member for Cork, speak doubtfully on the point. In the case of the Committee on Charitable Corporations, no fewer than twelve persons were ordered to attend, and afterwards ordered to be taken into custody, there having been some apprehension that they intended to abscond. There were several cases—among others the inquiry into the charges against the Duke of York and the inquiry into the Walcheren expedition—in which witnesses who had attempted to evade the Speaker's warrant had been taken into custody by the Sergeant-at-Arms. How stood the case in impeachments in the other House? Did the Lords allow themselves to be guided by the forms and rules of ordinary courts? Assuredly not. It was frequently the practice, certainly, for the Lords to submit a case to the Judges, with fictitious names, or no name at all, for the opinions of the Judges as to how such a case would be viewed in a court of law, but nothing further. In an impeachment of a Peer for high treason, he moved an arrest of judgment on the ground that a material allegation had been made without a fixed day or time having been named in the averment; but the House of Lords decided that it was not necessary that the time and place should be so specially stated. Hon. Members were of course aware that in courts of law it was absolutely necessary that the time and place at which any circumstance charged against an individual had occurred should be stated; and they would not fail to see that there was no similarity in that respect between the rules which the House of Lords acted upon, and those that prevailed in the courts of law. The House of Lords had ever since acted upon the decision which it then came to, and did not recognise the necessity of fulfilling these legal technicalities in its warrants. If the Parliament made an allegation in its warrant which was intelligible and consistent with common sense, it was quite sufficient, and the warrant required no more special state- 1244 ment than that. But, in fact, warrants rarely stated the cause of bringing persons to the bar of the House, the ordinary course being for the Sergeant to take the individual into custody, and having done so, to state the fact to the House, upon which the person was ordered to be brought in. That was the course which had been adopted for the last century. When he found, in the face of an Act of Parliament declaring the privilege of printing to be necessary to the execution of their functions, that the Court of Queen's Bench held this language:—The defendant, he says, being an officer of the House of Commons, is protected by an Order of the House, directing him to do to the plaintiff, the identical act complained of. Such an order of itself, and without more, is an answer to the action. Now, this is the leading proposition maintained by the defendant in the case of Stockdale and Hansard, and it was upon examination deliberately denied by the unanimous judgment of this Court. To this doctrine, established by that judgment, I fully adhere; unquestioned as it has been in any Court of Error, strictly conformable as I am firmly convinced it is to the principles of our law, and essential to the existence of a free constitution.When he found such language repeated, in a subsequent case, having no immediate bearing on "Stockdale and Hansard," he feared there would be the same disposition to interfere with and deny their privileges. Now, if the privileges of that House were necessary to be maintained, and if it were the case that they could not usefully and successfully pursue those inquiries which were necessary to the due discharge of their functions, without such privileges as compelling the attendance of witnesses, how, he would ask, did it accord with that statement of the Lord Chief Justice? It was said, indeed, as an argument against the course which the House of Commons took, that the Court of Queen's Bench could not compel a witness to attend, without explaining the cause for which he was so compelled; but to that he would answer that no such proceeding was necessary on the part of the House of Commons. When they required a person to attend as a witness, they ordered him to attend at the bar of the House; and if the person so ordered refused to attend, it necessarily followed that he was ordered into custody by the House for so refusing. Let them take the case of Lord Coventry, which was brought 1245 before the other House of Parliament in 1792, as an example of the privilege of Parliament, and the mode of proceeding in maintenance of it. In that case Lord Coventry complained of a challenge having been sent to him, on the ground that it was a breach of privilege; and the House, having examined a witness, came to a resolution that the letter was in the handwriting of a certain individual, and ordered that individual to be sent for and reprimanded. A similar course was pursued in many other cases; and, in fact, it had never been held necessary to state the reasons for causing a person to be brought to the bar of either House of Parliament. The opinions which he (Mr. Wynn) held thirty-five years ago on the subject were still unchanged. On that occasion he brought forward a Motion in that House with a view of supporting their privileges; and he was now as firmly convinced as he then was, of the great importance of maintaining them by their own strength, and from themselves. They were a component part of the Constitution, and it was necessary for the discharge of their functions as a constitutional body that they should protect their privileges.
Mr. J. Stuart Wortley
said, he regarded the question before them as one of such importance, so far as the privileges of the House and their constitutional rights as citizens were concerned, that he could not allow it to be decided without rendering all the assistance which he was capable of affording in order to enable the House to come to a proper decision. He did not consider the question before them to be merely whether they were to submit their privileges to the decision of a court of law, or whether they should refuse so to submit to them. If that were the question, he would very easily decide it so far as his views were concerned; namely, by maintaining that in no case whatever, whether directly or indirectly, should they submit their privileges to the decisions of a court of law—that in no case should they allow the courts of law to have an opportunity of considering or deciding upon the privileges of the House of Commons; for he looked upon it as essential to the functions of that House, which was itself one of the elements of the Constitution, that its privileges should be maintained. That was not now the question which they were called upon to decide; 1246 for the case stood in a very different position; and they were to consider, in the present state of this case, what course it was most desirable to pursue. He apprehended that there was a mistake prevalent with respect to the necessity of issuing a warrant on the part of the House of Commons, in order to arrest a party where their privileges were concerned; for he apprehended that the name of a warrant was often used as a bugbear, and the celebrated case of General Warrants was often brought forward and used for the purpose of raising a clamour and a cry where there was no necessity. It happened, not in the case of arrests by authority of the House of Commons alone, but it happened in many other cases, that subjects were ordered into custody in perfect consonance with the principles of the Constitution without any warrants; and in that case the Court of Queen's Bench had a power beyond what they (the House of Commons) claimed; for the House of Commons claimed the power only during their sitting, whilst the Court of Queen's Bench might for an indefinite period of time, and without any warrant but the order of the court, commit a party to custody for contempt. That was the power which the Court of Queen's Bench possessed, and which it exercised without the issue of any document which any other court could take cognizance of. It was a power which, he ought to remark, was not confined to the Court of Queen's Bench, inasmuch as it was in the power of any court of record to commit a party for contempt, for an indefinite period; and if a writ of habeas corpus were taken out, and that it averred in reply that the committal was for contempt of a court of record, there would be at once an end to the question. He could instance a case which recently occurred in one of our dependencies, and in adverting to it he would not treat it with the same contumely with which it appeared to have been treated by the hon. and learned Member for Bath. The case to which he alluded occurred before the Royal Court at Jersey: that court committed a British subject, for contempt, to prison, and did so with an unwise and unnecessary degree of harshness. The case was brought by habeas corpus before the Queen's Bench in England, and it was decided that habeas corpus extended to that dependency; but it was pleaded, in an answer, that no 1247 warrant was necessary for the committal of the party in Jersey for contempt, and he was remanded to Jersey, in custody, accordingly. That was another instance of the power to order a party to be taken into custody without a warrant. But he would remind the House that they (the House of Commons) issued a general order to take every stranger found in the House into custody, and they even could extend that to the lobbies of the House—nay, more, for in former days, when the conduct of footmen was different from what it was at present, they issued an order that footmen found in particular parts of the neighbourhood of the House should be committed. But their power went further, they could commit one of their own Members; and he apprehended that they had the power to order even the Speaker into custody. Did not that clearly establish the privileges of the House, and that they were, if not anomalous, at all events unlike the privileges of other courts? If they supposed a case of great emergency in which it would be necessary to order a person into custody without a warrant, they could at once see the nature of this privilege. Suppose the case of the gunpowder plot, that it became necessary to arrest the leading conspirators who entertained the design of blowing up the Members of the House, could not the Sergeant-at-Arms, without any warrant, seize upon the principal conspirator, and drag him to the bar of the House, and could not the House commit that conspirator without any warrant? But they (the House of Commons) were not the only persons who had a power of committing without warrants, and he could on that occasion remark that they were not Ministers, but the elements of the Constitution — they were not the only body which could arrest or commit without a warrant. In the case of an ordinary felony a constable took a man without a warrant; and if a constable saw an assault committed, he took the person who committed the assault without a warrant. Perhaps a party might in such cases resist a constable who did not acquaint him with the cause for which he was about to take him into custody; but if the Sergeant-at-Arms took a party without a warrant in cases similar to those which were adverted to, although it might reduce the crime of the party in killing a man resisting the arrest to something lower than murder, yet no action 1248 would lie against the Sergeant-at-Arms for taking the party into custody. With respect to directing the Attorney General to plead for the House, in order that he might instruct the Court that the privileges of the House should not be interfered with, however he might approve of such a course, he would remind the House that when once they pleaded they became involved in all the legal technicalities of the plea, and were thus prevented from disclosing the real merits of it as they might desire. It was impossible to read some of the judgments, and not to see that they were based on erroneous grounds; for judges were like other men, and he could not help hoping that the result might yet be different from what it had been. It had been asked if the next decision was against them, what would they do? His answer was, that they would be in no worse position than that which they occupied at present. Then the question would arise of the expediency of an appeal to the House of Lords; and although that had been looked upon as a delicate question by some, yet he could not say that he saw any difficulty in it. On the contrary, he should with greater confidence submit the case to the House of Lords than to any other tribunal; fur the Members of the House of Lords were themselves jealous of their own privileges, and the House of Commons were in this case only maintaining the exercise of privileges which the House of Lords had over and over again exercised. He was in that case supposing a decision against the privileges of the House of Commons. But supposing the decision were in favour of the House of Commons, was it probable that the other party would go before the House of Lords? In an appeal to the House of Lords, they (the House of Commons) could have this advantage, that they could represent their privileges in that House, it being partly legislative and partly judicial, and it would consequently have the power of receiving and considering that information with respect to the privileges of the House of Commons which they could not set forth before a court of law. Whenever the case should arise of their being obliged to appear before the House of Lords in the maintenance of their privileges, he agreed with the hon. Member for Winchester in believing that there was no danger that the House of Lords would succeed in bearing down the privi- 1249 leges of that the stronger member of the Constitution. The hon. and learned Member for Bath asked what they should do in case of a great emergency, such as an invasion? He had asked were they to wait until the case was decided by the slow and technical process. This, it ought to be remembered, was no emergency similar to that to which the hon. and learned Member alluded. It was a case which, on the contrary, afforded them an opportunity of acting with wisdom and without precipitation, and of maintaining their privileges with prudence. In all cases where their privileges were invaded, whether they took a milder or a stronger course, it was essentially necessary for the House to assert those privileges, and prevent them from invasion, either from the courts of law or from any other source.
§ Lord John Russell
I do not feel that I can altogether avoid taking a part in the discussion of this question, after the statements of my hon. Friend the Member for the University of Oxford, and of the noble Lord the Member for Hertford. Had the only question to be discussed been that which was proposed by the Solicitor General, I should have been satisfied to rest upon the statement of the hon. and learned Gentleman, clear and able as it was, and to have voted with him, without intruding upon the House any observations of mine; but the hon. Baronet the Member for the University of Oxford, and the noble Lord opposite (Lord Mahon), have expressed opinions with respect to the powers and privileges of this House, which, agreeing as I do with the Solicitor General, I cannot allow to pass unnoticed. The noble Lord told us of various instances in which the privileges of the House had been abused; and the hon. Baronet advises us to acquiesce in a judgment which has been stated to be conformable to the law, and to submit in future to the judgment of the Court of Queen's Bench. That is inconsistent with the view which I take of the privileges of this House; inasmuch, as I consider it as necessary for this House to maintain the law and privileges of Parliament, as it is for the Court of Queen's Bench to interpret and maintain the Common Law of the country. If I refer to authorities, I find this statement made by Lord Tenterden, and by the noble Lord who is now deservedly Chief Justice in the Court of Queen's Bench. That noble 1250 Lord states, in the case of Howard against Gossett, that Parliament are the judges, by the law and the custom of Parliament, of their own privileges; and that the Judges of the Court of Queen's Bench must presume that they have decided according to that law. Sir, I confess that, in my opinion, it is as preposterous for the Court of Queen's Bench to decide as to the extent and nature of our privileges, and whether or not we have the authority in the case which we state we have, as it would be for this House to take into its consideration a judgment of the Court of Queen's Bench upon a point of Common Law, and to decide by a majority that the Judges were wrong, and that the Common Law is different from what they had stated it to be. I consider the law and custom of Parliament to be as much a part of the law of the country as any other part of the law. And yet upon the contrary view has been founded much of the prejudice and much of the error upon which those who oppose our privileges have gone. They say, why do you not obey the law—why not act in conformity with the law—why set up your own arbitrary caprice, your own will and pleasure (according to one of the Judges, Mr. Justice Coleridge) against the decision of a Court of Law? My answer is this—that our privileges, and our declarations of those privileges, are as much law as that which the Judges declared to be law; and, therefore, it would be as easy for me to say, with respect to any question which the Court of Queen's Bench decided upon, after it declared what was the Common Law, with much consideration and due consultation of the authorities—it would be as fair for me to say, "This is the will and the caprice of the Court of Queen's Bench," as it is for them to say that the decision of this House, with respect to its privileges, is the will and caprice of the House of Commons. It is the deliberate judgment of a court qualified to judge with respect to the law which is confided to its hands. So the greatest Judges in the courts of law have stated: Lord Tenterden, following all the authorities, has declared that we are the judges of our own privileges; and, therefore, I cannot but protest against opinions which have been delivered in this House which go upon the contrary assumption, and pretend that we are setting ourselves up against the law, or presuming to 1251 decide upon that which is not within our province. I need not enter upon the question of precedent, because the right hon. Gentleman the Member for Montgomery, who is the best qualified to guide the House in its deliberations upon such points, has given precedents for the exercise of this power; but with respect to the value of the power, I will venture—following other hon. Members—to assert that the use of the power is absolutely necessary for the exercise of our functions. It would be quite impossible in the case of any inquiry upon a public question with reference to a public officer, or a person engaged in the administration of justice, to pursue such inquiry with effect, unless you had the power of bringing that person before the House; and if he refused to come by summons, or unwillingly, and you suspected he sought to evade your authority, of compelling him to attend personally. But there has been—and this I consider to be the foundation of the recent judgment—there has been amongst lawyers, and those who have obtained the eminence of Judges, a narrow view of the question of Parliamentary functions and Parliamentary powers. No greater instance can be given of this than the fact that Lord Erskine, a man of great powers of mind, of comprehensive understanding, and of almost unrivalled eloquence, was found to be, with regard to any point involving the privileges or the functions of Parliament, totally inadequate to form a correct judgment of those functions. He even went so far as to state that there could be no impeachment, except in a case where an indictment would lie. Why, Sir, it is quite obvious that an impeachment by this House may go upon a question—nay, it has gone upon a question—of a Treaty injurious to the interests of this country, upon the cession of possessions of the Crown which ought not to have been ceded, or upon such questions as those with regard to Lord Oxford, Lord Bolingbroke, or Lord Somers, that they endangered the balance of power; or upon such a question as that raised in the case of Mr. Warren Hastings, that he was guilty of abuses in his exercise of the vast powers he possessed in India. And will you tell me how, upon such points as these, indictments could be preferred before the Court of Queen's Bench? and how it could be argued in that Court that the balance 1252 of power was endangered by the Minister of the Crown, who was the object of the impeachment? We, therefore, must come to the conclusion that the Members of the House of Commons have functions which may be higher—which, I say, are higher in their nature—but, at all events, are of a different nature from those exercised by the Court of Queen's Bench. I am not disputing the right of the Judges to the exercise of those powers which belong to them. I am not questioning their accurate exposition of the law, and their conscientious administration of what they conceive to be the law; but there is no similarity between a question which regards the administration of public justice according to the Common Law, and that which concerns the safety of the Constitution according to the law of Parliament. These two questions are totally distinct and opposite; and when a learned Judge says that he has examined the warrant of this House, and scrutinized it technically, as he would the warrant of a justice of the peace, and that the warrant ought to have been differently framed, I say that he totally mistakes the functions which belong to the House of Commons. Suppose, for instance, some such question to arise as may arise every day. We had a question the other day respecting our fortifications, and the safety of our seaports. The right hon. Gentleman the First Minister of the Crown said, that he did not wish it to be stated in this House what was the nature of our defences, wherein our strength consisted, or what preparations might hereafter be made against the attack of a foreign enemy. The right hon. Gentleman exercised his discrection in this respect, in the way that might naturally be expected. But supposing that some officer who was entrusted with plans, directions, and secret instructions with respect to those defences, was ready to betray them to a Power with which we were then at war; if the question came before this House, and it was asserted that a person was thus acting, and that the safety of the State was endangered, will any man say that our Speaker must wait till he had consulted the most astute lawyer he could find before he could sign a warrant by order of this House to arrest the man who was about to reveal those secret instructions to a foreign enemy—that he must look for precedents which the Court of Queen's 1253 Bench would acknowledge—that he must take all the refinements of special pleading—that he must state, according to one Judge, the mode in which the warrant was to be executed, in order to bring the individual before the House; or, according to another, what was the urgent cause upon which the House issued its warrant; and if the warrant was not in exact form, if it was not drawn with all the niceties and technicalities of which the Court of Queen's Bench would approve, then that the person whom you were about to arrest as being about to commit treason to the country, and to endanger the safety of the State, might lawfully commit an act of homicide against the Officer of the House—will any man hold such a doctrine as that, or contend that the Court of Queen's Bench is justified in looking thus technically and narrowly into our warrants? Sir, I say it is necessary for public purposes, and is of great benefit to the country that we should have this power; and, after all, when we are told that this is an arbitrary power—that it is making the House of Commons supreme, and establishing its will and caprice—I say, with respect to this question, as with respect to other questions with regard to which any powers are to be exercised, there must be some authority with whom the absolute discretion must rest. In the conscientious exercise of its own powers the Court of Queen's Bench is supreme—in the exercise of its own powers the Court of Chancery is supreme; but suppose cases of abuse to arise—for I will not shrink from that question — where does the Constitution vest the ultimate power? Is it in the Judges of the Queen's Bench, or of the Courts of Common Law? Certainly not; for there are laws which provide that the Judges may be removed by address of both Houses of Parliament. Therefore, it is not in them that the Constitution vests the ultimate and irresponsible power. Where then is it vested? Why, where the public safely is concerned; for the immediate purpose for which the exercise of that power which is necessary for the public safety, the power is vested in this House for this purpose. But is there no check upon this House? Undoubtedly there is; and if this House abused its power, or exercised tyranny at the suggestion of any private individuals, or for the sake of assuming despotic powers, and exercising them in a way wantonly to in- 1254 fringe the liberties of the people of this country, then with the people themselves would rest the power, and no sooner would an election come, than the people would say that they disapproved of our proceedings, and would resist our tyrannical despotism. And, therefore, I say, with respect to this question, as with respect to all others — the Queen, exercising her sovereign powers according to the Constitution—the House of Lords, exercising its powers according to the Constitution—and the House of Commons, exercising its powers according to the Constitution—it belongs ultimately to the people of the country to decide. So long, indeed, as they are satisfied with the manner in which the powers entrusted to each of these bodies by the Constitution are exercised, the people do not actively appear; but they would resent any disposition to exercise tyrannical powers. And do I want confirmation in this? My noble Friend the Member for Hertford says that powers in the course of the last century received general assent which would now meet with our reprobation. If so, then we want no check. If we are averse to stretching our power beyond what is necessary, my noble Friend is himself a witness that it is not necessary to check us in the exercise of the power that belongs to us. If my noble Friend refers to history, and goes to the last century for instances of abuse, I will carry him to the century before. I will take him to the Court of Queen's Bench—I will show him Judge Jeffries presiding there, and will quote his words—I will put that Judge before him, trying Algernon Sidney, and I will ask him, if the House of Commons has abused its privileges, whether the Judges of the Queen's Bench have not, in former times, abused theirs? But let us not rely on these instances of historical abuse. The noble Lord cannot say—no one can say—that the House of Commons at this time is disposed to stretch its privileges beyond their legitimate exercise. I do not think that the recent cases have arisen from anything but a wish on the part of this House to exercise its powers for the benefit of the public generally. No man can say either that there exists in the Court of Queen's Bench any such dispositions as actuated Judge Jeffries and the infamous Judges who presided in the courts of law before the Revolution of 1688; but there is this dispo- 1255 sition:—The House of Commons having had to struggle with adverse powers, and being now in itself a strong body, there is in the courts of law a disposition to take a narrow view of its functions and its privileges, and to pare them down to their own technical definitions. I do not say that they seek thereby to increase the powers of the courts of law; but the result is extremely injurious to the country. If they were to succeed in forcing us always to frame our warrants in a technical form; and, above all, if they were to inspire those who are to execute our warrants with a fear that they would not be supported by the House, it would seriously injure the powers which we exercise. Sir, I have thought it necessary to say thus much, because my hon. Friend the Member for the University of Oxford has upon this occasion taken the opportunity again to question the privileges of this House. Whatever be the state of the argument, I have no difficulty in making up my mind as to the general question of the privileges and powers of this House. With regard to the immediate question before the House, I own I see greater difficulty; but looking at the question immediately before the House, that which I own inclines me to concur in the proposition that we should proceed by writ of error, is the extreme difference of opinion which prevails amongst the Judges of the Court of Queen's Bench. I find it impossible to collect from that diversity of opinion, the grounds upon which they mean to take their stand. Mr. Justice Wightman says that the warrant is not sufficient, because, though it recites the Order of the House that Thomas Burton Howard should be sent for in custody and taken into custody, it does not say what was to be done with him when in custody, and does not say that he was to be brought to the bar of the House—in short, it does not say that if Thomas Burton Howard should be found crossing the street at Charing-cross, the Sergeant-at-Arms would be justified in doing more than in stopping him in the middle of the footway, while he was surrounded by the carts and carriages which were passing. But Mr. Justice Coleridge, who takes a more rational view of the case, says, that if that were all, the sense is quite plain; it is quite plain what the House intended, and plain what the Speaker meant by the warrant which he issued, pursuant to the Resolution of the House, and that he should have no 1256 difficulty in forming a judgment upon that part of the case—the part of the case upon which Mr. Justtce Wightman founded his sentence against the House. But Mr. Justice Coleridge finds another fault—he finds fault with the warrant, because it does not state the particular cause for which this person was ordered to be sent for in custody. Sir, I own if I thought that opinion of Mr. Justice Wightman somewhat trivial and technical—if I thought it a somewhat small and trifling way of dealing with the Order of this House—I find this opinion of Mr. Justice Coleridge, on the other hand, most extensive and alarming—because, if we were to say before any one is sent for in custody, why he was to be sent for—if that was to be the course, Mr. Justice Coleridge would have a right to decide whether the cause was sufficient. The House having decided that Matthew Prior was engaged in negotiations dangerous to the interests of the country, that he had carried on intrigues with Foreign Powers, and that there was reason to suspect that he intended to alter the dynasty established by Parliament—put all that in your warrant, and Mr. Justice Coleridge would feel himself bound, according to this opinion of his, to enter into the whole question to say whether there was sufficient cause, perhaps to pronounce that the intrigue had not gone quite the length of high treason, that the correspondence did not quite amount to an indictable offence, or constitute a sufficient cause for issuing an order that the individual should be taken into custody. Why, Sir, it does then come to this—that the Court of Queen's Bench, by its own narrow views—by its own views limited in their extent with regard to the law and the Constitution of the country—is to judge of the powers and the functions of this House. Such is the conclusion to be drawn from the opinion of Mr. Justice Coleridge. Then my Lord Denman again seems to take another view of the subject; in the course of which he positively says that it is not sufficient for the House to assert that a particular course has been taken in conformity with the privileges of this House. That he asserts to be the result of the judgment in Stockdale and Hansard. Altogether, then, these opinions are very various; but they all alarm me with respect to these assertions as to the law and the privileges of this House. If I take Mr. Justice Wightman's opinion, 1257 I cannot consent that our warrants shall be judged by those technical rules which would be applied to warrants issued by a justice of the peace. I cannot consent, as the Report truly says, that any inferior court, as well as the Court of Queen's Bench, shall be at liberty to pick our warrants to pieces, and by the exercise of some special pleading to prevent objects being carried into effect which may be of the highest importance to the interests of the country. If I take Mr. Justice Coleridge's opinion, I cannot agree that in every case in which the House shall think fit to act, whether it be sudden or urgent, or high, or important, it is necessary to state the grounds for that judgment of the House. If I take Lord Denman's opinion, I cannot agree with him that this House is not the place in which its privileges and its powers are to be decided, both as to their nature and their extent. Well, then, I have said that these opinions thus differing, induce me to proceed to a Court of Error. I cannot help thinking that an opinion pronounced hastily in the first case of Stockdale, has been the foundation of much misapprehension and mistaken consistency in the judgments of the Court. I cannot help thinking that all these considerations, with the decisions of Judges of former times, men of high reputation, and who presided in the courts of law with satisfaction to the country, will be weighed by the Court of Error, and by the Judges generally, if the case goes before them. My hon. and learned Friend (Sir Thomas Wilde) is of opinion that by going before the Court of Error, we shall allow our privileges to be still further called in question; but I own that I have never been able to see ground for saying that beyond a very trifling degree we shall make any sacrifice of our privileges, because it seems to me that the question which the House first submitted to a court of law, namely, that the act had been done in conformity with its privileges, and in pursuance of the Orders of this House, will be the very question to be submitted to the Court of Error. We do not submit all the opinions of the Judges on these particulars to the Court of Error; but what we submit is the first and primary question, whether they ought not to be satisfied, first, with the authority of this House, and next, with the production of the warrant, bearing the 1258 name of the Speaker. If upon argument the Judges decide in our favour, or point out in what respect they think that those privileges which have been asserted in former times successfully, are mistaken by us, in that case we shall have a light that may guide us in our future course. For my own part, I shall not say what that course ought to be, in case the judgment should be in our favour, or contrary to our privileges. I think it must be much directed (and if it were not so, I should not agree in advising it) both by the judgment, and by the reasons which may be given for it. That this House has power—a great and paramount power—to assert its privileges, I have a most confirmed persuasion; but if you mean to assert it by your own authority, you must not be blind to the public inconvenience that may be occasioned by it. The House, by stopping its functions, and refusing to act at the beginning of the Session, till it had all the powers and privileges necessary to enable it to exercise its functions with efficacy, and by a declaration of its determination to that effect, would reach every power of the Constitution—whether it appealed to the Executive for authority, or to the House of Lords for concurrence, and would oblige them to agree to its fair and just requests; but n making that demand, and especially in the first assertion of it, there would be great public excitement — great agitation — there would be much misconception, and it would be said that you were endeavouring to override and overbear the decisions of the courts of law. For that reason I think it better to have further time to consider—that some delay should be interposed before you take any decisive steps, rather than, as has been proposed by my hon. Friend the Member for Montrose, you should now assert your privileges. But when the time shall come — when the Court of Error shall have decided—whatever that decision may be—I think, without going to the House of Lords, you will have all the materials before you for shaping your course. When this very question was in agitation in the year 1843, I said you ought to plead, because you could not otherwise formally inform the court of law that your privileges were invaded. No learned Gentleman whose advice I asked could tell of any other way in which the court could be informed that 1259 the privileges of this House were concerned. But I was of opinion that all persons engaged, whether plaintiff, solicitor, or counsel, should, one after another, be summoned to the bar of this House, and if he persisted in his proceedings, committed for contempt. This was the course recommended by Mr. Ponsonby. I have a very great respect for the authority of Mr. Ponsonby; and I think the course which he recommended was the best for the House to adopt. It may be too late, or it may not, to pursue that course with respect to the actions now pending. But, at all events, I am disposed to wait until we have the judgment of the Court of Error. Until we shall have laid before that Court the grounds upon which we think our privileges are concerned, and that they ought not to be questioned by the Court of Queen's Bench, I would not consent that the Speaker should be directed by the House to frame another form of warrant, or to endeavour by niceties of construction to avoid the questions that might arise. I believe that all precedent and reason entitle us to say that a warrant which is drawn up in common sense, desiring the Sergeant-at-Arms to bring an individual in custody, and so worded as to be understood by common men, is quite sufficient; and I regret—I very much regret—it is that part of the judgment of the Queen's Bench which I most regret—that ever any question was raised as to the execution of such a warrant, and of what might happen, if a person resisted its execution by force. I should not have adverted to that point, so reprehensible do I consider that opinion, had not my hon. Friend the Member for the University of Oxford, thought it necessary to refer to it. I consider that if any mischief or any violence should ensue, in consequence of the expression of that opinion, on the Judge who delivered it will rest the responsibility of those consequences. Our warrants have been hitherto obeyed as the lawful warrants of an authority known to the Constitution. No person do I ever remember to have attempted to resist them by violence since the Revolution of 1688. To have raised the question that they might be so resisted, and that if that resistance was carried to an act of homicide, it would not necessarily cause a verdict of murder, is a doctrine so dangerous, that I can only trust that any one who may be the subject of such a warrant will be too well 1260 advised to expose himself to the consequences of acting upon such an opinion. But if such a case should ever arise, our remedy is tolerably clear, although it is not one to which I should wish to resort. The Sergeant-at-Arms is an Officer of this House, originally appointed by the Crown to do our behests, in order to enable us to perform our functions. If the Sergeant with his mace is not sufficient—if he, acting under the warrant as signed by your Speaker, is not sufficient—we must address the Crown for such an armed force as it can place at our disposal to assist in its execution; and it will be the duty of the Minister of the Crown to see that the Sergeant-at-Arms is sufficiently reinforced for the execution of the warrant. In the case of Sir F. Burdett, although he shut himself up in his house, and there was a large mob, the soldiers did not hesitate to assist in the execution of the warrant, and the Judge who had to decide on that question pointed out that they were engaged in the execution of their duty. It is lamentable that the Judges of the land should raise a question presenting to our contemplation the necessity of employing a military force for the execution of warrants; but upon them, I repeat, must rest the responsibility of hinting at such a thing. For my own part, I am for taking all moderate courses—courses of caution and delay. They may be called pusillanimous—they may be said to be endangering the privileges of this House—I am, nevertheless, ready to take them; but in the final result, I think the House cannot part with privileges which are necessary to its existence, and without which its existence would be an evil rather than a good.
§ Mr. Fitz Roy Kelly
begged to express his entire concurrence with the noble Lord who had just sat down, in the proposition that the privileges of that House should be determined in that House, and in that House alone, and that the privileges of the House, as established by the deliberate Resolution of the House, became part and parcel of the laws of the land. He conceived, however, that it was from misapprehension of the true meaning and effect of this undoubted legal proposition, that so many, so unjust, and so unfair attacks had been made upon the judgment of the Court of Queen's Bench. He could not but persuade himself, if any hon. Gentleman in that House would deliberately sit 1261 down and examine the judgment which had been so much impugned, of at least two of the Judges, that he would find nothing in that judgment inconsistent with the principle which he had that moment ventured to state, as the principle adopted by the House, and forming part and parcel of the law of the land. It was not his intention to offer any opposition to the Motion of his hon. and learned Friend the Solicitor General. He was not disposed in any way to oppose the issuing of a writ of error. But as the Motion made in and adopted by that House, empowering the Sergeant-at-Arms to plead to the action, and out of which the present proceedings had arisen, appeared to him to have been much misunderstood by many hon. Members, he felt it his duty to state the ground on which he had concurred in that Motion, and the grounds on which he was now disposed to acquiesce in the Motion of his hon. and learned Friend, that this case should be further submitted to a Court of Error. He could not but think that any hon. Member of that House who supposed that, by authorizing its Officer to plead in the action brought against him by Howard, the House, in fact, at once informed the Court of Queen's Bench that the act complained of had been done under its authority, and that it thereby at once established a defence into which the Court could no further inquire, must have taken a most limited and erroneous view of the law of this country. He must take leave to say that he heard with inexpressible astonishment, on a former occasion, from the hon. and learned Member for Worcester (Sir Thomas Wilde) a statement to the effect that such must have been the opinion of many, and the grounds of the proceeding of many Members of that House, in concurring in the Resolution that the Sergeant-at-Arms should be permitted to plead to the action in the Court of Queen's Bench; that those hon. Members thought that by such a course the Court was informed that the act in question had taken place under the authority and Order of the House, and that, therefore, the Court of Queen's Bench was bound at once to admit the plea. He could only say, that if such were the impression of any Member of that House in supporting that Resolution, it was not his; and he was utterly unconscious that such an impression prevailed. He certainly well remembered that the right hon. Baronet (Sir R. Peel) suggested that the warrant might be cri- 1262 ticised, and that the Court of Queen's Bench might inquire into its validity. It might be that he had only imperfectly heard what had fallen from the right hon. Baronet on that occasion; but to him, and he might venture to say to any lawyer in that House, to suggest a doubt, that in regard to the only plea which could be pleaded to such an action, the Court of Queen's Bench would not inquire, on ordinary principles of law, into the validity of the warrant, must seem perfectly incomprehensible. He must here take leave to inform the House—and he was sure that in this proposition he would have the concurrence of his hon. and learned Friend opposite (Sir T. Wilde)—that when an individual, be he who he might, was impleaded in an action, and pleaded to that action, and put himself at issue in any court of law in this kingdom, it was impossible, without a violation of law for that Court to distinguish between that individual and any other individual who might be party, plaintiff or defendant, to an action. It made, and could make no manner of difference, when parties were before the Court of Queen's Bench, in an action of trespass, and the defendant pleaded his justification, whether the defendant were an Officer of the House of Commons, of the House of Lords, or of the Crown, or any other party, no matter how humble in the State. The Court was bound to administer the law—to construe and give effect to the plea, as regarded the Officer of the House, in precisely the same manner, and on precisely the same principles, as it was bound to do in the case of the poorest and the humblest mechanic or peasant in the land. Such was undoubtedly the law, and such was the undoubted duty of the Court of Queen's Bench. The House would now permit him to advert to what was the real effect and consequence of pleading to the action, under the authority of the House, by its Officer. If any hon. Member supposed that that was merely a means for informing the Court that the act complained of was done under the authority of the House, and that greater effect was to be given to that act, upon that information, by means of the plea, than to an act concerning another individual under other circumstances, the information as to which was similarly conveyed to the Court, the idea which he entertained was altogether erroneous. Where an action was brought against an Officer of that House, the Officer, if he pleaded to 1263 the action, must, if he justified, set forth his justification in the plea. In the present case, he might briefly advert to the circumstances which led to the action, as, by so doing, the House would be possessed of what was the true question which was tried before the Court of Queen's Bench, and what was neither more nor less than the true and real effect of the judgment. Mr. Howard brought his action against the Sergeant-at-Arms, or rather, against the individual, Sir William Gossett, and alleged in his declaration, that he had been arrested and imprisoned. The defendant, in answer to that charge, pleaded certain Resolutions and proceedings in that House, and then proceeded to set forth the warrant—the warrant of the Speaker—which was used on the occasion in question, and to justify the arrest, under and by virtue of that warrant. Now, in such a plea—for such was the law of the land, and if they were to alter it they must do so by an Act of Parliament, and by that alone—in such a plea, the defendant must stand or fall on the legal validity of the warrant. If an assault were committed on any subject of the Crown, and he brought his action for such assault, and the defendant justified by virtue of a warrant, if the warrant were good and valid in law, the defence was established; but if the warrant were bad in law, whether it were bad in substance or in matter of form, the defence failed, and the Court had no choice, but must give judgment for the plaintiff. It was, therefore, upon this plea the question, and the sole question, for the consideration of the Court of Queen's Bench, whether the warrant upon which the defendant, in the present case, rested his entire justification, was or was not a valid warrant, in point of form and substance, according to the law of the case. He would not then follow the example which had been set by some hon. Members, and enter at present into the discussion of that legal question. He could not think that that House was the most proper or most convenient place for discussing a technical question of law. But he must observe that it was a question of far higher importance than it seemed to be thought by some hon. Members, who treated almost with levity the judgment of the Court, and the arguments upon which that judgment was based. It was, indeed, a matter of the highest constitutional importance to know, whether that House or any other body or authority in this country could 1264 defend a warrant as legal and valid, according to law, under which one of Her Majesty's subjects had been arrested and imprisoned, that warrant setting forth, as was alleged in the present case, no cause whatever for such arrest and imprisonment. Let it not be supposed that he was then venturing to pronounce an opinion that such was the warrant in the present case. That was a point for discussion in the Court of Queen's Bench. It might turn out, on a writ of error, that the Queen's Bench was wrong in holding that the warrant set forth no cause. It might be that the Court of Error might so consider this warrant, as to hold that, looking to its recital, and looking to the language in which the order was given to arrest the body of the plaintiff, sufficient cause did appear, and that, therefore, the Officer of the House was justified in what he did. On that question he would now offer no opinion, for the reason which he had already stated. That would be a question for the consideration of the Court of Error, and he doubted not but that then full justice would be done to it. But, with respect to the proposition that that House, or any other power in the country could, by the law of this country, arrest and imprison a subject of the realm, under a warrant, without any cause assigned; that might be the law, and he would at present offer no opinion as to whether it was or not; but, if it were the law, he must say that the Habeas Corpus Act was a mere nullity. If that House could, by its mere Resolution, or by any other act which it might choose to do, give validity to its warrants, the House assumed in such a case to itself a power, by its own separate Resolution, of repealing the Habeas Corpus Act—of repealing, in fact, the whole common law of habeas corpus, as far as related to its case, and to the acts of its officers. Nor did he propose at present to enter into this question. But, again, with regard to the warrant itself, it had been said that this question was determined by the Court of Queen's Bench as a question of privilege, and that the Court had taken upon itself to determine the privileges of that House, and to assail these privileges. He had had the misfortune, humble individual as he was, to incur the censure of his hon. and learned Friend opposite (Sir T. Wilde), and, amongst others, of the noble Lord the Member for London (Lord John Russell), whose opinions on any subject, he could 1265 not but listen to with respect, because, being a Member of that House, he was supposed to have argued in the Court of Law against the privileges of the House. He thought that he should be able to convince the House that no question touching the extent of its privileges, that no question which could properly and constitutionally be discussed in that House, and in that House alone, was really involved in the discussion had before the Court of Queen's Bench. But if such questions were involved, he might lament that he had incurred the censure of those whom he so highly respected and esteemed; but he must say, that if he erred on this occasion, he had been led into that error by the House itself; for he must take leave to remind the House, that another Member of the House the former Attorney General (Sir Frederick Pollock), and one who was now a Member of the House (the Solicitor General), had been both ordered by the House, and they had obeyed that order, to do the very act which he had been assailed for having done; that was to say, to argue in a court of law a question supposed to involve the privileges of the House. Was he to be told that he was unable, after having argued that question, to come into that House, and to express an unbiassed opinion, and to give an independent vote? If that were so, his hon. and learned Friend the Solicitor General was in the same predicament; and he too might be supposed unable to come to the House with an unbiassed and unprejudiced mind, and unable to form or to give an independent vote. Surely, it would not be said that they might fetter the vote of any individual Member of the House, if he happened to be a member of the Bar; but that the same was not to be the case with regard to the Attorney or Solicitor General. He could not collect, from anything that fell either from the noble Lord, or from his hon. and learned Friend opposite, or from his hon. Friend the Member for Sutherlandshire (Mr. D. Dundas), who, on the occasion to which he (Mr. F. Kelly) referred, had addressed the House, and first impugned his conduct—and he was unable to learn, from what had fallen from any hon. Member opposite, on what ground it was that a Member of that House, being a member of the Bar, was worthy of censure for arguing a point of law, before a court of law, although the point in dispute might afterwards become a matter of discussion in 1266 that House. He would submit to the House another consideration which it might deem worthy of its attention. Where a single individual, perhaps one of their own constituents, brought an action, a bonâ fide one, perhaps, against an Officer of that House, the House stepped forward to defend its Officer, with the public purse at its command, with unlimited other resources and power, and ordered the first and most eminent counsel of the day to defend its case; and was it fair and reasonable to take away from the individual bringing the action any assistance which he might have it in his power to derive from the employment of some other counsel? If that were so, he must beg pardon for having obtruded this personal question upon the House, and he would pray the House to come at once forward, and by Resolution declare in what cases, and on what questions, it would be competent for Members of the House, being also members of the Bar, to appear and plead in courts of law; and when such a Resolution should be passed, those in his predicament would be better able to determine whether they should turn to the people or to that House; and to which they should give their exertions. It was said that the judgment in this case assailed the privileges of the House; and most undoubtedly, if the defence had been that which it seemed to be supposed by many hon. Members to have been, such would have been its character. But he thought that it would be found, however technical the inquiry might be, in looking into the plea, that it involved no question of privilege. The plea justified the arrest of the plaintiff, by virtue of the warrant, raising only the question whether the warrant was a legal warrant. True there was an allegation in the plea of certain proceedings in that House. It stated that Howard had been summoned to appear, that he had contemptuously refused to appear, and that it was on his contemptuous non-appearance, and, as the plea proceeded to allege in general terms, according to the usage and practice of the House, that the warrant was issued under the authority of the House. Now, what the Court of Queen's Bench held upon the plea was this, that it alleged nothing touching the privileges of the House, and that their decision did not involve the position that the House had not the privilege to arrest in the first instance without notice, without warning, without disobedience or any offence com- 1267 mitted. What they held merely was, that it did not sufficiently appear by the allegations in the plea that it was the privilege of the House to arrest the Queen's subjects on warrants issued in such a form as this. That was the effect of the judgment; and he would venture to observe that if this plea, instead of the general language it contained, and which those who understand this question would see was merely general, had contained, as it should have contained, if the House meant to tell the Court of Queen's Bench that it was its privilege, and that it was the law of England that it could arrest the Queen's subjects on a warrant in the following form, setting forth the form—that such was its power and privilege, this discussion might have been avoided; but the plea contained no such allegation. In reality there was no question of privilege whatever involved in the plea. It might be alleged that the Court was too scrupulous in observing the forms of pleading before them; but he must be permitted to observe, that certain technical rules of pleading were adopted by the Courts, by which rules the Courts were bound to interpret every plea which came before them; and, interpreting this plea by such rules, nothing was found in it to inform the Court that the privileges of the House of Commons to arrest under such a warrant as this was intended to be pleaded in the action. If the occasion should ever again arise where any one should be arrested under a warrant in this form—if the House should then mean to assert it to be its privilege to arrest, by warrant in this form, it must instruct those whose duty it may be to attend to the proceedings to see that its privilege be placed upon the record, when it would probably be found that the Court of Queen's Bench would give a very different judgment. Such a case was not the case in the present instance; and unless the Court of Queen's Bench were bound to decide that that House, or its Officers, might arrest any of the Queen's subjects, with or without cause at all, he knew not how they could have done otherwise than hold the warrant to be bad. And he might observe that he had heard with great regret the statement made in the course of the discussion, that the Queen's Bench had not only set itself up in conflict with the privileges of that House, but that it was always ready to administer the laws in a manner the least favourable to the liberties of the subject. Now, he felt con- 1268 fidence in denying humbly, but firmly, both these charges. In making the assertion that the Queen's Bench was ever ready to give effect to the privileges of that House, he would venture to remind the House, that, although its power of commitment had been questioned in the Court of Queen's Bench, on various occasions during nearly two centuries, although persons imprisoned by the House had been brought up on habeas corpus, complaining that they had been arrested under the warrants of the House, under warrants in all manner of forms, but containing sufficient to enable the Court to collect from them that the arrest was made by the authority of the House, yet in no case during that time had the Court, in a single instance even, discharged the party complaining, or done otherwise than give effect to the judgment and to the privileges of the House. Could it be said, then, when they found that, in innumerable cases, arising within the last two hundred years, whenever the undoubted privileges of the House came under the consideration of the Queen's Bench, the Court invariably gave effect to the privileges, and never denied them, when properly stated, according to the rules of law—could it be said that that Court was adverse to the privileges of that House? He might notice, as he passed, that, even in this very case, although he had incurred censure for so doing, he had ventured to suggest doubts as to whether the privilege now claimed existed; and that Lord Chief Justice Denman distinctly intimated his opinion that the House had the right, in sending for witnesses, to arrest them in a way in which no other court, except the House of Lords, had the power to do, and have them conveyed to its bar. The Lord Chief Justice unnecessarily stepped out of his way to intimate that opinion. With regard to the charge of the hon. and learned Member for Bath, that the Court of Queen's Bench had shown itself adverse to the liberty of the subject, though they did indeed owe to the wisdom and courage of their ancestors, and to the patriotic spirit of both Houses of Parliament, the law of habeas corpus, yet it was from the Court of Queen's Bench that it had received strength to become, as it was universally admitted, the greatest, the most valued, and the most powerful bulwark of the liberties of this country. He wished that the hon. and learned Member for Bath, instead of dealing in those vague sarcasms in which he chose to indulge against the Queen's Bench, 1269 had condescended to state in what single instance, within the last 150 years, the judgment, or even a dictum of the Court of Queen's Bench, was adverse to the liberties of the people of England. The noble Lord the Member for London certainly did refer to one or two instances of corrupt and unjust Judges, which would, he was ready to admit, hardly bear inquiry; but, with those signal and rare exceptions, the Court of Queen's Bench had zealously defended and protected the liberty of the subject. Looking, then, upon this question in the form in which it really existed, as a question not involving the privileges of that House, but as a question as to whether the warrant under which the Officer had arrested one of the Queen's subjects was a good and valid warrant—the point for them to determine was, whether the adverse judgment of the Court of Queen's Bench should be submitted to the revision of a Court of Error? He would then offer no opinion as to whether the judgment was a sound and correct one or not. He admitted that it was enough for him, whatever might be his own opinion, that he found that one of the learned Judges, differing from the rest, had pronounced an opinion in favour of the Officer of the House, and that more than one hon. Member of that House entertained the same adverse opinion as regarded the judgment of the Court, and that he felt that this was a question in which the House took so deep an interest, to justify him in acquiescing in the Resolution of his hon. and learned Friend. That was the advice which would be given to a private individual in a matter of importance. If there was any reasonable doubt of the validity of the judgment, let it be taken to a Court of Error. He would not, therefore, oppose the course suggested; and he trusted and believed that, ultimately, justice would be done. He could not sit down without adverting briefly to the other course suggested and recommended by his hon. and learned Friend opposite (Sir Thomas Wilde), a course of resistance to the due course of law, an appeal to force, to the exercise of at least a doubted privilege, by resorting to commitments for contempt, not indeed in the present case, but in any other case which might thereafter come before the House, of attorneys, clerks, bailiffs, sheriffs, plaintiffs, counsel, and judges, until the privileges of the House were fully vindicated. It was by far too wide and large a field for discussion at present, whether that 1270 House, by the law, and by the Constitution, possessed the privilege which, in that respect, was claimed. He would not enter into that discussion just now; for if he did it would be an unprofitable one; and he would have to refer to precedents and authorities, some of which might be disputed, and others of which might have taken place and arisen in doubtful and bad times, when neither the law nor the Constitution prevailed in the proceedings of public bodies in this country. Instead of entering now into such a discussion, he would take the liberty of calmly and shortly calling the attention of the House to what, he apprehended, would be the necessary consequence of any such course being adopted. He felt it the more expedient to do so, as he now heard, for the first time, that three more actions were pending against the Officer of that House, in reference to which it was necessary to plead and defend these actions again, or at once to resort to force, as suggested. It seemed that, in one of these actions, the damages were laid at 100,000l. Let him invite the calm attention of the House to what would certainly be the inevitable consequence, if the mode of proceeding were adopted, which was contended for by those who entertained extreme opinions on this question. The first step would be, that the House would forbid its Officer to plead to the action. It would depend upon its own power and force to vindicate its own privileges. Such would be known to the public, and, of course, known also to the plaintiff; and, with especial reference to the action for the 100,000l., it would be known that the House would not plead. He entreated his hon. and learned Friend opposite to inform the House if he (Mr. Fitz Roy Kelly) were incorrect in pointing out the following as the course which it would be easy for the plaintiff to adopt, and difficult, if not impossible, for the House to prevent. The course of matters would be this:—The plaintiff brought his action, and laid his damages at 100,000l., for some imprisonment, perhaps richly deserved on his part. If the action was pleaded to and defended, if he were proved to have deserved it, and he were properly arrested, he would fail in the action. But it was known that the House would not plead. The plaintiff proceeded with his action. The House might commit him if it chose. He would then bring another action. The House might then commit the attorneys, the coun- 1271 sel, the judges, and others concerned in it, till it had stopped the administration of the law. In the meantime the action was being proceeded with behind the scenes, and was at length brought to judgment. The plaintiff would not execute the judgment, so long as the House was in Session; he would wait until the House was prorogued. He would then go before a jury. He would appeal to the jury, and as the House would not condescend to make the Attorney General appear, the plaintiff might, before the jury, state whatever he chose; he might make out a case of pretended grievances; he might make himself appear the most oppressed and injured of men; and no answer being given, he would be supposed to be a person against whom tyrannical powers had been exerted by the most powerful body in the realm, and he might obtain, say half the damages, claimed in his declaration. What was to prevent him, then, from levying the sum so awarded upon the goods and lands of the Officer of that House? What was then to prevent him from putting the money in his pocket, and setting the House at defiance? All this would be done in the recess. The House assembled again in January or February, and what would it do then? It would commit him again. He would afterwards go through the same form of action, and once more get his damages during the prorogation. When they once determined to resort to these commitments, they would find their privileges worse than useless, mischievous, dangerous, and unconstitutional; but, above all, privileges which they could never maintain. They had no weapons to fight with, no shield with which to cover themselves, no power of successfully and effectively contending thus with any subject, though he might be the most worthless of the realm. He, therefore, prayed the House not to enter into a discussion as to how far its inherent privileges extended. It might be their desire, as it was their privilege, so to act; but if they valued their reputation—if they valued the love, as well as the respect and admiration of their constituents, they would not enter into a contest in which the most worthless in the country might prevail over them, and in which they might be signally and discreditably defeated. Why enter into such a contest? Was there anything in the present state of society, anything in the present state of the Constitution, which rendered such a course necessary or expedient? Did they now find any difficulty, with 1272 the great increase of Committee business which had this year devolved upon the House, of procuring abundance of witnesses from the most remote parts of the kingdom? Take care to do as the right hon. Gentleman below him (Sir J. Graham) must do, if he were to issue his warrant in one or in one thousand instances—to make that warrant in something like the form recognised by law; and then, indeed, you may exercise your privileges, high, and extensive, and unlimited as they are, in the certainty that you will not be resisted by worthless and reckless persons; but that your power will be supported by all who value the laws and Constitution of the country. But if, with respect to the pending actions, they should feel disposed to determine upon the course of commitment, he prayed them to consider, looking to the description of the individuals and the class from which they spring up, how much they had to gain in this contest, and how little it was possible they should lose; how much they now possessed of the respect and the support of the people; with what great power they had invested them, and how much they had to risk, and might lose. Pause, then, he ventured humbly and earnestly to implore them, before they entered into the contest. He doubted not, if the time should ever arrive, when conspiracies against the State, or fear of foreign invasion, or any other great and terrible occasion, should demand the exercise of unusual powers; that, exercise what powers they might, this would receive the cordial support of the whole people of this country; but, it was dangerous, in the ordinary transactions of mankind, in the administration of their functions in peaceable times, to put hypothetically extreme cases. His hon. and learned Friend opposite talked of foreign invasion, and asked whether, when they wished to arrest ten or twenty people, to stay some mighty mischief, Lord Denman would look into the form of their warrant. Why, no; he apprehended that if it were necessary, and if they made the arrest by the usual or constitutional form of warrant, they would only have to plead privilege against any one rash enough, or bad enough, to dispute it, and declare that it was their privilege so to act, and they would find that the Court would give effect to it, as it before had done. He must apologize for detaining the House so long; but he was desirous of stating that, if it were thought worth while to proceed further with this action, he should not op- 1273 pose that course; but if, with respect to the other actions, or any similar proceedings, instead of resting upon privileges, which were a part of the law of England, the House sought, if not to violate the law, at least to enter into a contest with the law, it would not in his judgment, pursue a wise, moderate, constitutional course, such as he ventured to concur in recommending.
§ Sir Thomas Wilde
was not, he said, at all surprised to find that his hon. and learned Friend who had just sat down should be willing to concur in the recommendation of the Committee, because he stood precisely in that situation in which it was to be expected that such an opinion would be entertained by him. He did not very well comprehend how his hon. and learned Friend could reconcile that part of his argument in which he maintained that the Court of Queen's Bench would, upon all occasions, decide in favour of their privileges wherein they exercised them in case of an extreme emergency, and yet would not do so in the present instance. He thought there was a variance in that part of the argument, and that the statements made in the one case and the other were not very consistent. His hon. and learned Friend had adverted to some remarks that had been made upon the fact of his having been counsel for one of these parties. His hon. and learned Friend asked, was that House to entrust to some of its Members to support its privileges, and were others not to contest against its privileges? He did not apprehend why it should not do so. He did not understand, if they were correct, and he thought they were, in maintaining the privileges of the people—those privileges which they had in trust—that they had received on that condition and under those circumstances, that the people had confided them to the House, and in which they had been given to them ever since the last election; and if the House were prepared to maintain itself in that state and condition in the Constitution, he said, that in that case, he could understand, when a Member of Parliament was elected for the purpose of maintaining the powers of the Commons of England, that it was not reasonable that a Member elected for the maintenance of these powers, should be found acting as the advocate against these very privileges. Yet that was the condition of his 1274 hon. and learned Friend. His hon. and learned Friend said he would pronounce no opinion upon the judgment of the Court of Queen's Bench; and why did he not? The House had a right to the opinion—the House had that right—the people had it—not one's own mere constituents; but, standing there in the condition of Members of Parliament, charged with the interests of the kingdom, when the interests and the privileges of Parliament were affected, had not the House, he asked, a right to that opinion—especially to the opinion of one possessing the talents and knowledge of the hon. and learned Member; and the right, too, to the benefit of his talents in maintaining the privileges of the House? Why, then, did his hon. and learned Friend shrink from giving his opinion as to the proceedings in the Court of Queen's Bench? For this reason—because he had acted as counsel, because he had so acted as counsel, because he had been an advocate against those privileges—because he had done so, he had disqualified himself from giving an opinion in that House. The House had been deprived of the benefit of the talents of his hon. and learned Friend; and further, it was impossible, on that account, for his hon. and learned Friend to give a fair and unbiassed opinion upon the course which the House ought to pursue. His hon. and learned Friend might have told them what was the better course—and he thought it would be easy for him to find a better than the present, and not easy to discover a worse than that which had been suggested. They were, he said, entitled to the opinion of his hon. and learned Friend, and that they should have that from him in the performance of his duty as a Member, rather than as that of counsel: for, eminent as were his talents, and important the services of his hon. and learned Friend as counsel to all who had the advantage of his advocacy, still in Westminster Hall there were to be found ample means of supplying his place without his withdrawing from them that legitimate means of support which they had a right to in the person of one of their own Members. Upon the subject of this Motion he now said it was most material for that House to consider the position in which it stood. His hon. and learned Friend had adverted to the long period of 150 years, during which the privileges of that House were maintained in a court of law. The pre- 1275 sent position of that House was most remarkable. He thought he might say that all the learning and all the knowledge of the last 150 years, or nearly so, had steadily and invariably proceeded on this principle, that in the opinion of the Judges, that House was the sole judge of its own privileges. It was somewhat painful for him now to speak upon this subject; for he had already obtruded himself upon the attention of the House several times. The question was a very extensive one, and he found that many who had spoken upon the subject had not made themselves acquainted with all the circumstances which would enable them to form a correct judgment with respect to it. Statements had been made inconsistent with Parliamentary authority; and either a considerable time must be wasted in refuting them, or they must be allowed to pass apparently consented to, because uncontradicted. It was stated there was a judgment against the privileges of Parliament. It was admitted on all hands that there was a law of Parliament. The Judges of the land, as it had been correctly stated by the noble Lord—the Judges sat to declare what was the Common Law, and to state what was the Statute Law; but centuries had passed by, and the opinion expressed by those whose learning would never be surpassed was this—and numbers of Judges, one after another, had all declared it in the most emphatic terms—that Parliament alone was the sole judge of its privileges. He had taken the liberty of saying more than once, that it was impossible that any other tribunal could be the judge of them. The course recommended by the Committee was evidently one proposed with an ultimate view to legislation; and when he heard legislation suggested by hon. Members, for whose talents and judgment he entertained a sincere respect, whilst it made him distrust his own judgment, still he could not but venture to express the opinion that legislation was impossible. It had been said that the liberties of the country and the independence of Parliament depended on its privileges being undefined. Mr. Justice Coleridge, who had edited an edition of Blackstone, left that doctrine unimpeached. And so it had been left by the best text writers on English law. What did that mean? Was it that they were to be left some arbitrary power which they were to be at liberty to exercise, without reference to the duties 1276 they had to discharge? Certainly not. Who was to interfere, and say from what quarter resistance was to be justified to the functions of that House? Could they interpret it as necessary to the purposes of legislation, either as regarded a conspiracy against the State, or various other matters which affected the public peace, or for legislation on matters affecting foreign influence; or who was to define, who was to say, who was to foretell from what quarter resistance was to come. Why, opposition might come from the Crown, it might arise from the misconduct of Ministers, it might come from courts of justice, it might come from a private conspiracy. Who could tell? The House of Commons ought to have the power of resisting all arts that might be employed against it. How can any one provide for an unknown exigency? The House was to have power as the emergency might arise. To define its privileges was impossible, as impossible as to foresee the modes that might be suggested for resisting its authority. Their privileges were undefined; for this short reason, that they had certain functions to discharge. There was no tribunal or court in the kingdom which had not power to discharge those duties that the Constitution and the law imposed upon it. That House had certain duties to discharge, and its powers were whatever were necessary to the due discharge of its functions. What powers, then, would they be called upon to exercise? Who could state them? No one. Its privileges could be defined by Parliament in only one sense—what was necessary for the public service. Not one iota more. Their privileges were not always the same. Why? Because not all occasions were the same, and they had a right to exercise them, for no other reason but because it was for the public interest. When hon. Members referred to the abuses of these privileges, he asked them, what was the remedy? Was it the courts of law? No. Where did they find the remedy? In that House. The House of Lords had equally abused their privileges. Instance after instance might be given to prove that. Many cases of abuse had been stated. The remedy was in that House. If the Lords attempted abuses, the public safety would be found in that House. But putting the Lords to decide upon their privileges was a point which he put aside for the moment, but should refer to by and by. No doubt there had been occasional 1277 abuses, but what did they desire to do? To subject that House to the courts of law. Was it because a remedy could be afforded by the courts of law? On the contrary, the remedy was to be found in that House alone. He said once for all, that these were miscalled privileges in one sense. The question they ought to bear in mind was, that they related to the Commons, for the benefit of the Commons of England, and to be exercised in the Commons' House of Parliament. The question was, what was their legislative power—in one word, what were these privileges, which were given to them for that object; for they were not to be associated with the individual benefit of Members, with which they had no relation. What, then, was their power in this respect? Here it arose out of the publishing of one of their Reports, and that connected with one of the most important subjects on which they could be engaged—the management of the gaols in England. What that House wanted to see and to know was, how it happened that punishment for a violation of the laws should be inflicted time after time upon the same individuals who were found coming back, and making themselves familiar with their gaols. They found that it was necessary for the public interest to see what amendments could be made in this law, to deter men from crime, and what punishments it might be wise to allot for that purpose. The Crown issued a Commission, and a Report was made to the House on the subject, and then, when, for the purpose of justifying their legislation, and particularly that of making their punishments more severe, the House gave publicity to that Report, the House, desiring to get information, and that leading, no doubt, to much information of great importance being communicated to the House, an action was brought. Was that an important privilege of Parliament—was it necessary, when it led to an Act of Parliament, which he supposed he might assume was passed on good authority—was it of importance that the House should have the power or privilege to issue that which was in the due discharge of its functions, and doing so it should be impeded by actions? A witness was desired to attend that House, and, in consequence of his refusal to do so, he was ordered to be taken into custody. What, then, did not that involve their privileges—their right to send persons to prison? This was not 1278 a question, such as had been stated, of an individual Member gratifying his private feelings. It was a subject of grave public importance. They sent to an individual, he avoided their summons; and now a question had arisen, and now they were met with the question, what right they had to capture the individual?—and in another way, in what form they could efficiently exercise their power? These were the questions for them to determine, and it was of importance to them that they should not impair their own powers of maintaining their Parliamentary authority; but they should preserve those powers as fully as they had been committed to their trust. His hon. and learned Friend (Mr. F. Kelly) told them they would be defeated—which would be very unfortunate. The powers that came to them at the last election, they should uphold in the same condition in which they had received them. That House had been able to maintain its privileges during the worst of times. They had received the powers of Parliament, and in that condition they had maintained successfully a contest with prerogative on many occasions. How was it that what had been so often found strong and effective, should, in their hands, become inefficient? How came it, that what was good and useful, until it came into their hands, should be now rendered useless, and they themselves covered with defeat and contempt? Did it not occur to them that this must be from the manner in which they had used it? Did it not occur to them that the power that they held would be returned to their constituents much impaired, and far different from the state in which they received it? When they entered the House, they did so to maintain it in its place in the Constitution. They were bound not to part with, not to trust their privileges to others; and he deeply regretted that hon. Members had taken such a view of this matter, as to consent to deliver their powers into the hands of others—that they should have left them to others' keeping—that they should have placed their powers and authority in the guardianship of others. To persist in doing so, would be to degrade that House, to deprive it of all just authority, and to lead to that which he thought would produce a state of revolution in the country. On a former occasion he had given the names and the authority of the Judges, who had declared, in the most unequivo- 1279 cal manner, from the time of Henry VI.—when they had been asked respecting the privileges of Parliament, they stated that it was not their place to do so; that their privileges were only known to Parliament itself legitimately; and they declined to give an opinion. There was scarcely a great name among the lawyers of England who had not maintained that opinion. It was said that in some cases the courts of law might look into these privileges incidentally; but it was never held that they should interfere with them. What had happened in their own day? "Burdett and Abbott" began the series. That case arose out of a libel on the House, at a time when it stood in no very favourable position in public opinion. Sir Francis Burdett was committed, and brought his action, raising the question as to what course the House should take. The House, on the distinct understanding that by appearing and pleading they were not submitting their privileges to the consideration of a court of law, took that course, believing that the court would not inquire any further. That was the ground on which the House acted. The case was permitted to be argued, and Holroyd contended that the House did not possess the power of committal for libel in that form. The Court of King's Bench held that the House had the power to commit for contempt, and that no court of law could examine into the committal. Lord Ellenborough threw out this remark—that he would not say that a case of great outrage might not occur—a case against common sense, against all law and justice, in which the House might choose to act, and then the courts of law would do their duty. What the noble and learned Lord meant, when he supposed such a case, it was not easy to ascertain, or why, when laying down broadly that Parliament was the judge of its own privileges—why he should have introduced hypothetically that in some case against all law and all justice—in short, a case not very likely to occur—the courts of law would do their duty, and examine into it. He had assumed that supposed case was only an idle one; for if the House adopted a course against all law and all justice, and had committed a party, then its next step would have been to have committed Lord Ellenborough himself had he discharged him. This he assumed; for if the House began by committing one out- 1280 rage, they would not have been shocked at committing another outrage to vindicate its proceedings. The supposition, however, of the noble and learned Lord was monstrous in itself. He repeated, there were some powers which were to be trusted to particular bodies without control. Where, for instance, had the Constitution placed the power of deciding on the privileges of Parliament? In Parliament itself? The House of Lords might decide that an estate was not freehold with respect to the heir. The heir had no remedy, for the House could decide as it pleased; and were they in jeopardy by reason of this power? Certainly not. To the question whether there was any power in the State to meet the exigencies which Parliament were called on to perform, Lord Ellenborough, in throwing out his remarks, gave a distinct judgment, that Parliament might commit. There was a decision in favour of the privileges of this House. And in bringing the writ of error, he begged to remind hon. Members that the House was never informed of this proceeding, and never gave permission to appear. The House consented to appear under the assurance that it was not submitting its privileges to the review of the law courts, and the House was not informed of any other proceeding. An appearance was entered, but without any authority on the part of the House. The terms, in the first instance, were certainly to defend the action, and it might possibly be that in those general terms it was conceived a permission existed to attend to the writ of error. His remarks, however, went to this, that the House passed no judgment on the propriety of bringing a writ of error. The case of "Burdett v. Abbott" was supposed to establish the authority of that House. But the event showed to the House the danger of trusting its privileges for discussion in any place except Parliament. After the case of "Burdett v. Abbott" came the case of "Stockdale v. Hansard." That led to the committal of the Sheriffs. When the Sheriffs were in custody, though the Court of King's Bench held that according to authority time out of mind, as the committal was generally for contempt, the Court could not discharge the Sheriffs, yet Lord Denman threw out a dictum—going even further than Lord Ellenborough—a dictum which stills remains on record; and 1281 which, unless the House interfered, would, on some future day, be the foundation of a further question of its privileges. He believed, however, that the question would be raised before long, and then he anticipated a very different decision to that which had been given. How stood the question? Mr. Stockdale found a notice of himself in some Printed Papers of that House, and he called on a court of law to examine the privilege which the House claimed. Each of the Judges pronounced that the power of publication was in no respect necessary to the power of the House. One Judge went so far as to say, that the House ought to burn all their Papers at the end of each Session, lest there should be found in some of them a libel against some one. What was the effect of this? Why, that the old Parliamentary law, that which existed time out of mind, was denied and controverted. This was not all. The Legislature had declared, that certain privileges and powers were essential to the due discharge of their Parliamentary functions. Lord Denman, however, said he adhered to his judgment. Pray, was it a good specimen of the power and accuracy with which courts of law would be likely to decide on the privileges of Parliament, that in the very first instance in which these courts assumed this power they came to a conclusion decidedly opposite to what the Legislature had come to? They decided differently to that which an Act of Parliament declared was essential to the due discharge of the functions of Parliament. This judgment was unreserved, and unresisted. This judgment, which asserted the principle and power of investigating the privileges of that House, was now put on record. Mr. Howard did not attend at the command of that House. A warrant was granted, and an officer went to the house to make inquiry, and was led to expect that Mr. Howard would soon return. The officer waited in the House, with the consent of the inmates, and at twelve o'clock, when an objection was made to his longer stay, he went away. This, then, was the case of an officer of that House, armed with the authority of that House, waiting at a certain place to take a witness into custody, who had been guilty of contempt for not attending to the commands of that House. This led to an action at law. What was the effect of the decision in 1282 that case? The Queen's Bench decided that the attempt to take a witness on the warrant of that House was an illegal invasion of Mr. Howard's house. It had been said that the Habeas Corpus Act would be a nullity if this were allowed. But upon suspending the Habeas Corpus Act, must there not be previous inquiry? Before the Habeas Corpus Act could be suspended, there must be a most important preliminary inquiry. There must be the handing over of green bags; there must be a Secret Committee; inquiry must first be made in order to take proper steps against the mischief that was anticipated. But the Court of Queen's Bench said, that an officer of that House must not remain three or four hours in a man's house. Was the House to be told by a court of law how long their officer was only to wait to capture a man, and that this man very possibly a most important witness in this Secret Committee? Was the power of the House of Commons to be decided in the Court of Queen's Bench? What means could the Court of Queen's Bench have of knowing the necessity for the man's capture? Before the House acted in Secret Committee with the view of suspending the Habeas Corpus Act, was an appeal to be made to the Court of Queen's Bench; and when the Habeas Corpus Act was suspended, was the House to produce its document in the Court of Queen's Bench to justify its proceedings, or was the Court of Queen's Bench to be withdrawn from its proper duties—the administration of the laws, in order to entertain such cases? If something were not done, the Court of Queen's Bench, by and by, would be investigating the extent of the House's authority to enforce the attendance of witnesses. What has occurred? The House had taken a man under its warrant, and it had been told that this Parliamentary proceeding must be subjected to the review of a court of law, and judged by the technical rules which governed the proceedings of such courts, the requisite authority by which they could examine how far they could go in procuring the attendance of witnesses. How stood the forms of their proceedings as to how far they might go in the matter? Was there, he would ask, such a thing as Parliamentary usage? No man had more respect than he had for the Judges of the Court of Queen's Bench;—for Lord Denman he entertained 1283 the greatest regard; for he believed him to be possessed of the highest qualities of the mind and heart; he believed that a more honourable man never existed; and there were few men who could be more honestly acquitted of seeking popularity by any course he might take than Lord Denman; for the other Judges he entertained an equally high respect; but he was perfectly astonished that opinions should be given by them so utterly inconsistent with the impressions he had always entertained of those learned personages—that he should hear it said the warrants of Parliament were subject to the technicalities of the law. He considered that this was utterly at variance with every constitutional right. There was nothing more clear, as was distinctly laid down by Burke, and every high authority upon the subject, than that the power and authority of Parliament in such actions were supreme; that they could dictate their own forms, and prescribe their own rules, although occasionally they were induced to ask the Judges of the land what were the rules of Common Law, for the purpose of applying them to Parliamentary proceedings. The laws of impeachment certainly regulated the laws of Parliament; but when they looked to the duties which the House had to discharge, and to the interests of the State which were involved, and which called for the instant exercise of their authority, should their warrant be compared to the forms of a justice's warrant? Had the Constitution given no guarantee for the abuse of this authority? Between the warrant of a justice of the peace and that issued by that House, there was no resemblance. That House was entrusted by the Constitution with enormous powers, and it was impossible that they could ever anticipate any abuse of it upon the part of the Crown. He was surprised to hear the authority of the Crown so much alluded to in this discussion. The Crown could do nothing. In order that the Crown might not be brought into collision with the people, the Constitution required it to act through the Minister—the Minister must act through his warrant. In one case only, when the King did exercise his authority of issuing his warrant, it was not recognised, because it was felt that by the law of the Constitution the King should act through his Minister, and that if he acted from himself it amounted to nothing short of revolution. No 1284 abuse was anticipated, either with regard to the Crown or to Parliament; but was that the case with the warrant of a justice of peace? Every subordinate authority was bound to show that it acted within the scope of its jurisdiction. The rules of the Common Law were in no respect applicable to Parliament; and upon this point he protested, with perfect respect, against the decision of Lord Denman and Mr. Justice Coleridge. The Courts had their rules of practice; the Queen's Bench and Common Pleas had their own forms and modes; and strange, indeed, would it be if the Houses of Lords and Commons were without them. In what condition would the House stand, if, to-morrow, an inquiry of an important nature were to arise? Could it commit? Would it have to send for advice to the Judges? If Mr. Justice Coleridge had drawn the warrant, he would have thought it good in respect to the absence of the parties; while Mr. Justice Wightman would have held it a bad warrant on that very account. Lord Denman would have drawn it one way, Mr. Justice Williams another. How, then, was the House to be safe? Not all the combined learning and talent of Westminster Hall could make it safe. Decisions continually deceived; safety was not to be found in them. The hon. Member for Oxford had said, "Prepare your form." God help the man who attempted to prepare it! Could all occasions be anticipated on which a warrant might be wanted? If the House were safe in the Queen's Bench, it would be unsafe in the Common Pleas, and if safe in the Queen's Bench and Common Pleas, it might be unsafe in the Exchequer. Did any man want a conclusive proof of danger of the kind, let him look at this case. On what ground was the warrant held bad? "Whereas the House of Commons has this day ordered that T. B. Howard be sent for in custody." Who had sent for him? — "This is therefore." What is therefore? — "To require you to take him?" What for?—"Because he is sent for, to take him into your custody." This was the direction of the Speaker to the Sergeant, and what more was wanted? If a man were ordered into custody, what was the general rule, but that he was to be kept in a convenient and proper place. It might be the house of the party; but the complaint of the party was, that he was taken through passages: "he was 1285 taken through a certain passage, detained a certain time, and then taken through another passage and another passage." Would any man contend that it was lawful to take a man into custody, but unlawful to keep him in a convenient place? According to Mr. Justice Wightman, the prisoner could be taken nowhere. If so, what was to be done with him? He could not imagine what was in the minds of the Judges. Was there anything to show that Howard was taken to an inconvenient place? He had been sent for, immediately found upon the spot, kept a reasonable time, and then brought before the House. But the warrant was bad, forsooth, because they took him through passages! If it were wanted to throw contempt on a judicial decision, surely nothing more could be required. It showed how great interests might be sacrificed by little petty views. An action was brought and maintained, because the Speaker's warrant did not contain a certain thing required in a magistrate's warrant. Thus the House had not only the warning arising out of the warrant, but the warning arising out of the uncertainty of the judgment founded upon it. No two Judges agreed upon any one point: Lord Denman differed from Justice Coleridge—Coleridge from Wightman, and Williams from all three. If so much time and care were necessary in the preparation of a warrant, what was to become of the party? The Judges took six months to decide whether a warrant was intelligible, which every old woman in the parish could clearly understand. Could any man assert that there was any substantial defect in it? Look, then, at the condition of the House: when would it awake? The extent of its power in issuing the warrant had been reviewed—the form of its warrant had been reviewed: how then could it venture to exercise the power of commitment if this were to be the law? Some talked of waiting for an occasion of emergency; a most extraordinary doctrine. Who ever heard that the House was to wait for a decision on the extent of its power until it was called upon to act in spite of the decision? Was it to wait until the public safety was sacrificed, or to pause in the exercise of its privileges until a judgment had been pronounced against them? It would never be in a better condition to decide such a question than now. The Solicitor General had said that the privi- 1286 leges of the House were not in question on the present occasion. He (Sir T. Wilde) was as much surprised at that statement as at the other. The Speaker was the organ of the House of Commons—the officer through whom it acted, and if the form of his warrant were to be decided upon by the Queen's Bench, was it no point of privilege? How could his hon. and learned Friend make such a statement? The question was vital as regarded privilege. The House was told that its warrant was bad, because a justice's would be bad if similarly worded, and yet it was no question in which privileges were involved. They were essentially involved, and he entreated hon. Members not to be deceived upon this point. If so, what was the condition of the House? It had had a decision against its privileges, and was in a difficulty how to act. What had brought it to this difficulty? Its own vacillation, because it had not possessed sufficient firmness to exercise its constitutional powers, and which if it did not exercise, the public safety was abandoned. Why did it discharge the Sheriffs? It was told that its powers would be defeated; powers which its predecessors had found sufficient, in its hands were useless. Had it tried them fairly? Why did it permit the Sheriffs to insult it? When they were at the bar they had called him to them, and he had advised them not to act unless they were determined upon their course. They said, they were determined; and while he went to the Table to draw their petition, a right hon. Gentleman walked down to the bar, and advised them not to present it. What was done? The House permitted the Sheriffs to insult it—to hold levees in the lobby—to receive advice and complaints, and then, because they were a little stiffnecked, they were discharged. How had the House used its means of defence? It had injured the authority of the House by having legislated—it had brought it into jeopardy by fearing to exercise an admitted power. It had been said, that the House ought to wait for public opinion. It was the duty of the House to lead public opinion. Had it shown that it considered its privileges important to the public safety? No. How, then, could any man wonder that the public doubted, when the House itself played so pusillanimous a part? What man would maintain the authority of the House, when the House was the first to abandon it? 1287 His noble Friend (Lord J. Russell) shrunk from the difficulty; the right hon. Baronet shrunk from it also, although it was a question which might be said to involve the destruction of the Constitution. He maintained that the House ought not to suffer the evil to accumulate until it brought the very safety of the State into danger, when it possessed legitimate powers, found sufficient at other times, although now some persons were afraid of relying upon them. The whole of this difficulty had arisen from the discharge of the Sheriffs. They had levied money, knowing that it was inconsistent with the Orders of the House. The House had not tried its legitimate powers: it was resorting to all sorts of shifts and devices instead; and what was it now doing? The general body of Members had great and just reason to complain. His hon. and learned Friend, now unhappily absent, and the present Chief Baron, had distinctly assured the House, that, by appearing and pleading, it in no respect would commit its privileges; and what was the result, but that its privileges had been committed? It was monstrous to see such doctrines prevail with one body of Members opposed to the other, when all ought to combine in asserting the privileges of the House, for its own honour and the interests of the State. This was not a personal matter, but a great trust, the proper discharge of which was essential to the public welfare. Was it not too much for the House to be told at one moment that its privileges would not be committed, and at another, that they had been so far committed that the only course was to proceed and commit them still further? The step the House formerly took was wrong, because it abused in the manner in which it had been abused. His hon. and learned Friend said, that by pleading they acknowledged the authority, and must abide by the judgment of the Court. But suppose a ship were taken as a prize of war. That would be a case for the Admiralty Court, for the Courts of Common Law had no jurisdiction. Then suppose the Court of Admiralty confirmed the seizure, and an action for trespass was brought for seizing the ship would any one contend that the Court of Law had legitimate power to examine whether or not the Court of Admiralty was right in its judgment? And so in cases of marriage and divorce, could the Courts of Common Law inquire into 1288 the judgment of the Consistorial Courts? Certainly not; and yet that House was asked to give them the power of deciding upon Parliamentary law, and the law of every other Court having exclusive jurisdiction. He had always thought it a most erroneous course to appear and plead to the action. He had always objected to giving the Courts of Law jurisdiction to decide their privileges. But, then, supposing they had done wrong, were they, as trustees of these important interests for the public good, bound to continue to do wrong for the sake of consistency? Were they to put the privileges of that House in peril, because they had been once advised to lake an erroneous step? Would it not be far better to state at once that they had done wrong; that their intention in appearing and pleading had been misunderstood; that it had led to the Court's deciding against the privileges of that House; but as the course taken by the House had led to misapprehension, it was not their intention to exercise their authority in this case against those who had been engaged in the action? You might also do this — you might rescind your order to the Attorney General to appear and defend the action; and you might resolve that the further prosecution of this action would be an infringement of the privileges of the House; and you might direct a copy of that Resolution to be served on the parties. He did not believe that the House would be induced to take harsh measures as to the action which the party in possession of the fiat of judgment, provided they were prepared to exercise their authority; but he would say, do not adopt any such Resolution except you have well considered it — and are prepared to abide by the consequences. You have resolved that to call in question the privileges of the House rendered the party amenable to punishment. What should you now do? That which appeared to him the least dangerous course was that which he had ventured to suggest. He should be disposed, from a conviction of its necessity, certainly to act upon strong measures; but he knew it would be idle to suggest any course of that sort. A writ of error was recommended; but he saw nothing in the case to warrant a writ of error. The right hon. Baronet said on a former occasion, and he certainly coincided with him— 1289Neither can I advise the House to appeal from the judgment of the Queen's Bench to the Exchequer Chamber, or to the other House of Parliament, for by so doing you further recognise a breach of privilege.Upon another occasion, the right hon. Baronet had said—Suppose we had persevered in pleading, and had carried the case in error before the fifteen Judges, and they had decided against us, we should have manifested no desire to vindicate our privileges.How, then, did the House show its desire to vindicate its privileges now? It had got into danger, and it sought a road to safety. The right hon. Baronet proceeded—Our next step would be to carry the question before the House of Lords, and if they decide against us how many more of our privileges might not be endangered by their decision!Thus it appeared the right hon. Baronet was right in his views in the beginning, though wrong in his recommendation in the conclusion. What would be the effect of bringing a writ of error? It seemed to him (Sir T. Wilde) that the House would lose a great deal by it. It had appeared and pleaded in the Queen's Bench under the fond assurance that it thereby gave no consent to the exercise of a jurisdiction over its privileges; but if it went to the Court of Error, what did it do but ask eight other Judges to decide the very point it had supposed the Queen's Bench would not entertain? It maintained that the Queen's Bench had no right to determine the matter, and yet it called upon the Court of Error to decide the very same question which it declared it never meant to submit to the Queen's Bench. The House only made a mistake then; but it was going to do wrong by design now. Suppose the judgment of the Queen's Bench were affirmed, would the public opinion be more in favour of the privilege claimed, because the additional weight of the remaining Judges was thrown into the opposite scale? His noble Friend (Lord J. Russell) would not consider at present what was to be done hereafter; but it was certain that the judgment must either be affirmed or reversed, and if it were affirmed, the House recognised the authority of the other Judges in determining a point on which it had denied the competence of the Queen's Bench. The Judges ought not to be trusted with such a question. If the judgment were affirmed by the Court of 1290 Error, what would be the next step? The House of Commons must go to the House of Lords; and the history of Parliament showed the danger of allowing one House to interfere with the privileges of the other. In Skinner's well-known case, the House of Lords had endeavoured to establish an original jurisdiction, and it had led to a conflict between the two Houses. This conflict might be renewed on the question of privilege. The proper mode of discussing questions of excess of privilege between the two Houses was by remonstrance and conference; but if the House of Commons, by an injudicious submission to the House of Lords, were to become subordinate, what then would become of the protection of the public? If the House of Commons abused its powers, it might be checked by dissolution; but the House of Lords was not a body brought together with a diversity of opinion; all their sympathies were preserved entire, and they met again with the same union of purpose. But not so the House of Commons. His hon. and learned Friend had said, would not the Court of Queen's Bench discharge upon a warrant of the House of Lords? With great respect, he (Sir T. Wilde) answered, No. At present the Court of Queen's Bench said, that a commitment by either House, without stating the cause, they could not relieve from. But when the Bench had ascertained the extent to which the House would submit, they would become more enlightened. But now with respect to the House of Lords—a writ of error would be sent from the Court of Queen's Bench to the House of Lords. Where then would the privileges of the Commons rest? In the House of Lords. The House of Commons would be handed over from the Queen's Bench to the House of Lords. Was that reasonable? The House of Lords, it was true, exercised the judicial power, but in what character? Not as the House of Lords, but as Parliament. When the two Houses separated, each of them retained certain functions; the House of Lords retained the judicial, but in theory the House of Commons were present—in theory they were parties to the judgment of the House of Lords as the judgment of Parliament. And now with respect to the privileges of the House of Commons being subject to the ultimate jurisdiction of the House of Lords, would not any man who searched the Journals of the Lords find 1291 there abuses of privileges as gross as any which had subsisted in those of the House of Commons? And yet the House of Commons were willing to submit the determination of their privileges to the House of Lords. But, surely, it was not right that one House should be so subjected to the other. Surely no man who knew the theory of the Constitution, and valued it in its present state, would think of bringing a writ of error to vindicate the privileges of the Commons in the House of Lords. Whether that was proposed to be done he knew not; but to use an old expression, in the name of safety he would declare that that was what ought not to be done. What was the principle that would be established? The destruction of their privileges, the destruction of their independence. They would have formed a precedent of the most mischievous kind. If the judgment were reversed, what would be the effect? There it would stand, that upon the Court of Queen's Bench having decided against their privileges, they (the House of Commons) applied to another court of law, which had decided with them. But then the judgment might be reversed; not upon the ground that the Court of Queen's Bench had done wrong in inquiring into the warrant, but that the warrant was a good warrant, even if it had been issued by a magistrate. And he strongly suspected that if the judgment were reversed at all, that that might be the ground of reversal. For if the Judges could possibly ride off upon that view of the question, nothing would be more likely than that they would so elude pronouncing upon the more delicate and difficult point involving the privileges of that House, from a dislike to deal with it. But one thing was certain, that House would never get out of the Exchequer Chamber without some of the Judges throwing out opinions adverse to privilege, and thus the House would incur damage by the proceeding. He had before taken the liberty of warning the House, and now, at the hazard of great responsibility, he told them that when they went back from the Exchequer Chamber, it would be only to regret that they had ever gone there. The House had taken one wrong step, but no man ever heard that that was the reason for making a second. The whole sense and tenor of the Report made against this course, although the Committee had recommended 1292 it. Let any hon. Member carefully read that Report—he would not at that hour detain them by reading passages in confirmation; but let any hon. Member read the Report, and he would be convinced that the conclusion to be drawn from it must be against the writ of error, although that was the step which the Committee had advised. But the House would take this course, because, as was said, by and by, when mischief enough had been done, they would legislate upon it. Suppose now the judgment affirmed in the Exchequer Chamber. It would then stand, having the force of law. If, then, the Commons went to the House of Lords, and asked them to legislate, then a course of error, of legal proceedings, would have been begun; and the House of Commons would be asked why they did not bring a writ of error into the House of Lords; for having done so before the Judges, they should have done so before the Judges in the last resort. That would be a most mischievous course, in which his hon. and learned Friend would concur as readily as he had done to the writ of error before the Exchequer Chamber. But did they propose by the writ of error to reverse the judgment, to decide that it was all wrong, and that the Judges had decided wrong in law? What was their ground for supposing that the House of Lords would concur with them in that view. Was public opinion so much against the House of Commons, that they could not now exercise their own powers, but that they must go and ask for an Act of Parliament to reverse the opinions of the Judges? Then suppose the judgment affirmed; if they proceeded to reverse that judgment, upon what grounds did they propose to do it? What would they then propose to do? Simply to reverse the judgment? That would not be sufficient. Would they propose a declaratory Act? If so, what did they mean to declare? They said that public opinion was against them, on the ground of their possessing undefined privileges. Did they then propose an Act, declaring and defining those privileges? Could any man doubt the absolute impossibility of framing any Bill which should have the effect of giving, by positive enactment, to that House all those privileges which were necessary to them for the due exercise of their legislative functions? They could do so by no general enactment, and he defied them to 1293 effect it by particular enactment. The House could not then declare that it possessed those privileges. The first difficulty would be in the House of Lords; for was the House of Commons prepared to submit their declaration of privileges to the judgment and decision of the House of Lords? But, whatever Act was passed, on this the House might rely, that from the moment it became law the House of Commons would be handed over to the courts, for to the courts of law was given the undeniable power of construing Acts of Parliament. Looking at the judicial criticism which the Speaker's warrant had undergone, the criticism upon a clause in an Act of Parliament might easily be imagined. So long, then, as the privileges of the House rested upon a Statute, the Judges would have the power to construe that Statute. Therefore, he said, do not legislate, nor take any step now in the idea that safety could be found in future legislation. He did lament the course the House was taking, because if they had committed an error, yet if they were prepared to do their duty by the public, and not add to the injury that had already been sustained, they could stop here. It was open to them to review their error, if it were one, or if there were no error they might view their conduct as having been misunderstood; and although in that case they might omit to punish what had been done under the influence of that misunderstanding, or had been caused by the conduct they had pursued, they might still do right for the future, and effectually protect the interests of the public which had been committed to their charge. If they did not do this, the last Parliament had sat which had preserved intact the constitutional rights and privileges they had received from their ancestors. He lamented that the right hon. Baronet opposite should be associated with the dissolution of Parliamentary privileges; but more than all did he lament that the name of Russell should be connected with it, bound up as that name was with some of the greatest passages in English history, and associated with the defence of constitutional liberty. Deeply did he regret his want of power to convince his noble Friend, with all his profound learning in the history of his country, and his deep knowledge of its Constitution, of the impropriety of the course that was about to be adopted; for he must lament that the 1294 name of the noble Lord should be found associated with what he could not but regard as a vital stab to the constitution of Parliament. He did not think the public were so much against the House as had been stated. All, however, he could say was—this was the case of the Commons of England. This was the moment for the Commons to maintain their place in the Constitution; it was not a contest for the benefit of Members of the House; it was a contest for the Constitution, or for that portion of it formed by the House of Commons. He therefore implored them, great as the authorities were that were opposed to the view he had taken, to pause before they adopted the course that had been recommended to them. He hoped the right hon. Baronet would disavow that course if he was satisfied it was wrong, and that he would not persevere in a procedure so detrimental to the public interests, and so derogatory to the dignity and character of Parliament.
§ Sir R. Peel
said, that in the course of his speech the hon. and learned Gentleman had given a solemn exhortation to the House, that they should adopt no step of their own inherent authority for the vindication of their own privileges, unless they first carefully considered all the consequences of the first step, and unless they were determined steadily and perseveringly to go through with that determination. It was because he agreed with the hon. and learned Gentleman—because he thought it of the utmost importance that, if the House chose to take a step upon its own authority to vindicate its own privileges, he came to the conclusion that every other course should be adopted before he would call upon the House to vindicate its privileges by its own authority. He looked at the constitution of that House, and he saw a popular assembly divided on this question, men of high authority disposed to support the authority of the courts of law—he saw the probability that the proposal to act by their own authority would meet with great opposition—he looked back at the course which the House had pursued, and he saw the noble Lord, who was prepared to vindicate the privileges of the House engaged in a similar contest, and he had assisted the noble Lord, the leader of a party, in the course which had been taken, by which the Sheriffs were committed. He remembered the determination of that contest, and the release of the Sheriffs, and all he then wit- 1295 nessed, confirmed him in the conclusion, that it was most important that their resolution to support their own privileges should be almost an unanimous one, and having entered on that course, they should resolve steadily to persevere. Now, he confessed he had not that confidence in the resolution and consistency of the House of Commons—of that popular assembly—which would induce him lightly to advise them to commence this course, and to be himself responsible for all the consequences. And it was because he believed there was another course which they could pursue, without the abandonment of their privileges, or depriving themselves of their authority, that he was a party to that Report, and was prepared to support it. It was perfectly open to them within the last three weeks to come to the resolution of vindicating their own privileges—it was open to them to hold the doctrine that they had consented to defend the Serjeant-at-Arms because they wished the Court of Queen's Bench to be aware that he had acted by their authority. And he was surprised that the hon. and learned Gentleman, with the opinions which he now entertained, voted for an adjournment of that debate over the day on which the Serjeant-at-Arms was called upon to pay the damages which had been assessed against him. If they merely pleaded their order, the Court of Queen's Bench must be aware that the Serjeant-at-Arms acted by their authority, and was it not competent for them to say, "the Court of Queen's Bench having refused to recognise our authority, we will now refuse to pay the damages?" He gave distinct notice to the House, that if they permitted that debate to be adjourned, that in the interval the jury would assess the damages, which would have to be paid, and then was the time when they ought to have given notice to the subordinate authorities of the court of law, that if they proceeded to levy the damages, they would be guilty of a breach of privilege. When they wished the debate to be adjourned, he was determined that they should not be ignorant of the probable consequences. The money had now been paid, and he presumed they would not permit the parties who had levied the execution to be dealt with as having committed a breach of privilege. The hon. Member for Montrose thought it was open to them to take that course; but he (Sir Robert Peel) thought that the House of Commons 1296 having consented to an adjournment, and the Treasury having paid the money, it would be a very improper and inconsistent proceeding to punish the officers, who, under the authority of a court of law, had levied the execution. It would be more consistent with their dignity to commit the Treasury who had paid the money; and it was that which he wished the hon. and learned Gentleman to consider the next; time he approached this contest. They must not deal with subordinates. Would the hon. Member commit the parties who really infringed on their privileges—the Judges who presided? He might depend upon it, that the House, when it did again enter on the contest, would not feel that it was properly vindicating its privileges by dealing with subordinate officers only. The hon. and learned Gentleman had referred to the Resolutions entered into by that House in 1837. He remembered them well. They were moved by Lord Campbell, then Attorney General, and they resolved that any party who brought an action against an officer of the House was guilty of a breach of privilege. There was no man more determined to support their privileges than Lord Campbell; but he came to the conclusion which the Committee did in the case of Burdett and Abbott, that, notwithstanding all those loud declarations as to the support of their privileges, yet, after an action was instituted, there was no alternative but to follow the same course as the Committee recommended, and plead to the action. And, therefore, actuated by the same motives as that noble Lord, he never would advise the House to enter upon that contest, until he foresaw that there was so deep a conviction of their privileges being endangered, that it was probable there would be nearly an unanimous opinion in favour of their being upheld. The hon. and learned Gentleman said they ought to lead and influence public opinion; but they could not do so, if they found a powerful minority denying their privileges, and aiding the courts of law in their assault upon them. These were practical matters, and it was not sufficient for him, with a majority of eight or ten, to undertake such questions. The House and the country must be persuaded that the time had come when every other measure was exhausted, and that only would be the period when they could hope with success to vindicate their privileges. But there must be no sympathy expressed with those 1297 who violated their privileges; there must be such a conviction of their duty towards the Commons of this country that the people would feel that there was no alternative but that the House should act for themselves and assert their own authority. Much of the speech of the hon. and learned Gentleman appeared to tell in favour of an appeal to a Court of Law. Would he allow the House to leave the judgment of the Court of Queen's Bench untouched? The hon. and learned Gentleman said, that Mr. Justice Wightman delivered a certain opinion; that Mr. Justice Coleridge entirely destroyed the authority of Mr. Justice Wightman's opinion; and that Lord Denman entirely destroyed the authority of Mr. Justice Coleridge's opinion. If that were so, it appeared to be a very strong reason for not permitting the judgment to remain entirely unquestioned. It appeared to afford to him ground for hope that an application to other Judges would lead to a reversal of the opinions of the Judges of the Court of Queen's Bench. The only way to question their judgment was to go before a Court of Error with merely the same plea with which they went before the Court of Queen's Bench, which, according to the hon. and learned Gentleman, was no recognition of their jurisdiction. It was merely a statement of a fact: — "This was done by our authority, and we deny the competency of a court of law to deal with it." When they stated that to a Court of Error, why did they make a greater concession than when they went to the Queen's Bench? especially when the hon. and learned Gentleman told them that it was no concession of jurisdiction whatever. With respect to the importance of their privileges, he agreed with the hon. and learned Gentleman that they were essential to the proper exercise of their duties. He claimed for the House of Commons the power of committal without the assignment of any reason. He thought that what the noble Lord said was true, that in cases, not of such extreme necessity as that which had been pointed out by the hon. and learned Gentleman, the power might be exercised. It would be a sufficient reason for having recourse to it, that some public officer or private individual might be about to depart from this country to give information to some other power; he thought in such a case the House of Commons had a right without a warrant—even without a warrant—to ap- 1298 prehend that individual, and detain him as long as they thought fit. He thought that was a power, considering their position in the State, which was necessarily inherent in the House of Commons; and to question a power of that nature was to question privileges without which their power of rendering service to the country would be altogether impossible. He could not reconcile the doctrines recently laid down by the Judges of the Queen's Bench with those pronounced by the highest Judges in the best periods of our history. The hon. and learned Gentleman said, that for 150 years the Courts had not denied the power of the House of Commons to commit for contempt. He was not at all satisfied with that. To limit by such a restriction their power would, in his opinion, be fatal to the proper exercise of their functions. He claimed for the House the right to commit both for contempt, and where there was no allegation of contempt; and he thought he could prove by the decisions of the highest judicial authorities, that the House of Commons did possess the power so to commit, independently of the power of committing for contempt. When it was said if the House had such a power there was an end of Magna Charta, that very allegation was made to the Judges in former periods, and scouted, as no reason for interfering with the power of the House of Commons. In the King v. Patey, Mr. Justice Gould said—If this return were the commitment of an inferior court, it had been nought, because it did not set out a sufficient cause of committal: but this return being of a commitment by the House of Commons, which is superior to this court, it is not reversible for mere form.Was there ever a more express admission that the House differed from an inferior court, than by this sanction of its warrant, which would have been reversible if issued by an inferior court? Mr. Justice Powis said—It is objected that by Magna Charta no man can be taken or imprisoned except by the law of the land.And it was then said, as now, let the House obey the law of the land, and it is safe. But what said the Judge—The lex terræ is not merely the Common Law, but is composed of the Canon and the Civil Law, &c., and among the rest of the Lex Parliamenti.1299 Mr. Justice Powell said—The prisoners were committed by another law, and therefore, can't be discharged by the law according to which they were not committed.A distinct admission that the law of Parliament was a distinct branch of the law, and not merged in the Common and Statute law. Throughout this discussion, too there was an universal admission that Parliament was the only judge of its own privileges. But he came to later times, and to the opinion of a Judge of higher eminence than even those he had quoted, who had no leaning towards the House of Commons, and who did honour to the very court whose judgment they now disputed. Chief Justice Tenterden said—It has been settled by many precedents brought forward at different periods in the Courts of Westminster, and finally in Burdett v. Abbott, which went on writ of error to the Exchequer Chamber, and ultimately to the House of Lords, that it was competent to the House to commit for a contempt of its privileges; and they are the judges and the only judges of that contempt.Now on the first reading of that it would appear that Chief Justice Tenterden merely conceded a power of committal for contempt. But he went on to say—In a great many cases of Shaftesbury, Patey, &c, there is decisive authority to show that the courts cannot judge of the law, custom and usage of Parliament, and consequently cannot discharge a person committed by Parliament for contempt.He thus deduced the inability to discharge for contempt, not from anything peculiar to contempt, but because the courts had no authority over the "law, custom, and usage of Parliament." How his authority must be condemned by those who would set aside our committal for informality; for he says—We cannot inquire into the force of the commitment, even supposing it to be open to the objection of informality.Again, here was the opinion of another Judge, not so high as a legal authority, but held in universal estimation — he meant Mr. Justice Blackstone. That Judge said—We can't inquire into the particular words of the warrant, or into the circumstances of the execution. It is our duly to presume these were the orders of the House, and that they were carried into execution according to law.1300 Now, he must say, that so far from thinking the House likely to err on the side of an abuse of privilege, his experience led him to think that their leaning would be to too great forbearance. Looking at the judicial decision of the Court of Queen's Bench, if he merely saw there the authority of the court opposed to that of the House, he should have a less confident hope that it would be reversed by the deliberate decision of a Court of Error, than when it was supported, as that judgment must be admitted to be, by reasons inconsistent with each other, and at variance with the highest judicial authorities of former, and even of recent times. After having given the case the best consideration he could — after having discharged the not very agreeable duty of serving on the Select Committee of Privileges, he was inclined to think it would be prudent to make an appeal to another tribunal. He dreaded the consequence of allowing that judgment to remain undisturbed. He spoke not of the technical judgment of Mr. Justice Wightman; but he saw in the other doctrines advanced as to the rights and privileges of that House, which he would like to see fairly questioned in a higher tribunal. His chief ground for advising that course was, that until they satisfied the House and the public that they had left no means untried of vindicating their privileges, they could not succeed in any more strong measures for the purpose. He would not anticipate what their course should be if the decision of the Court of Error was unfavourable. He did not feel they were thus making any undue concessions. The hon. and learned Gentleman said, the Parliament of 1841 met with the full possession of its privileges, and we have not been able to maintain them. He could not see the Parliament of 1841 was more faulty than its predecessors. In Burdett and Abbott the Committee of that Parliament advised the House to plead. In 1837, another Parliament consented to plead. He believed the Attorney General of that day did not do so without mature consideration of all the difficulties of any other course. He (Sir R. Peel) consented with the utmost reluctance to that first step. In Howard v. Gossett, it was thought necessary to plead on account of excess of damages. The hon. and learned Gentleman was Solicitor General, and consented to that course. [Sir T. Wilde was understood to say no.] After the experience of Stockdale and Hansard, Lord Campbell 1301 advised that course. Therefore, the acquiescence, if it be such, in the jurisdiction of the court is not chargeable on this House alone. No one held more strongly than he did, that the House had these privileges, that they were essential to the performance of its duty, that by the law and Constitution of the country it was intended the House should have the power of vindicating its own authority; but, at the same time, the presumption was, that the courts would sometimes interfere. Don't let them forget the power of committal was limited to the Session, and there was nothing to prevent an action from being commenced, and brought to a close during the recess. When the Sheriffs were committed, that did not prevent the payment of the money. The Sheriffs might be again committed; but other officers would supply their place, and when once the contest was entered on, there would be an abundant supply of martyrs. And, after all, imprisonment was their only resource — they had no power to fine. Would they limit their imprisonment to inferior offices? It was impossible to deny that public sympathy was on the side of officers placed in the painful situation of having to contend with two authorities. If there were any other course open to them by which they could set aside that judgment, which he believed to be inconsistent with reason, and he would add, with all deference to the learned Judges who had given it, inconsistent with the admissions of other courts of law; he for one was prepared—not denying the embarrassment attending the course which the Committee recommended—to desist from every other measure to which he could have resort without compromising the authority of that House, before he would appeal to that last and extreme measure which must be necessary for the vindication of their privileges, but the necessity of which, he trusted, might still be averted by the course which he now recommended to be taken.
§ The House divided:—Ayes 82; Noes 48: Majority 34.
|List of the AYES.|
|Acland, Sir T. D.||Bernal, R.|
|Bailey, J.||Bodkin, W. H.|
|Baillie, Col.||Boldero, H. G.|
|Baldwin, B.||Bowles, Adm.|
|Barkly, H.||Boyd, J.|
|Baring, rt. hon. F. T.||Bruce, Lord E.|
|Baring, rt. hon. W. B.||Cardwell, E.|
|Bentinck, Lord G.||Carew, W. H. P.|
|Christie, W. D.||Jervis, J.|
|Christopher, R. A.||Jocelyn, Visct.|
|Clayton, R. R.||Legh, G. C.|
|Clerk, rt. hon. Sir G.||Leveson, Lord|
|Clive, hon. R. H.||Lincoln, Earl of|
|Cockburn, rt. hn. Sir G.||Lockhart, W.|
|Corry, right hon. H.||Lowther, Sir, J. H.|
|Cripps, W.||Mackenzie, W. F.|
|Damer, hon. Col.||McNeill, D.|
|Denison, E. B.||Masterman, J.|
|Douglas, Sir C. E.||Meynell, Capt.|
|Drummond, H. H.||Nicholl, rt. hon. J.|
|Duncombe, hon. A.||Packe, C. W.|
|Dundas, D.||Palmerston, Visct.|
|Escott, B.||Peel, rt. hon. Sir R.|
|Ferguson, Sir R. A.||Peel, J.|
|Fitzroy, hon. H.||Pringle, A.|
|Flower, Sir J.||Rice, E. R.|
|Fremantle, rt. hn. Sir T.||Russell, Lord J.|
|Fuller, A. E.||Smith, rt. hn. T. B. C.|
|Gaskell, J. Milnes||Smollett, A.|
|Gladstone, Capt.||Spooner, R.|
|Godson, R.||Stuart, W. V.|
|Gordon, hon. Capt.||Sutton, hon. H. M.|
|Goulburn, rt. hon. H.||Tennent, J. E.|
|Graham, rt. hn. Sir J.||Thesiger, Sir F.|
|Grey, rt. hon. Sir G.||Trench, Sir F. W.|
|Hamilton, W. J.||Vesey, hon. T.|
|Herbert, rt. hon. S.||Wellesley, Lord C.|
|Hope, G. W.||Wortley, hon. J. S.|
|Howard, hon. C. W. G.||Wortley, hon. J. S.|
|Hughes, W. B.|
|James, Sir W. C.||Lennox, Lord A.|
|Jermyn, Earl||Baring, H.|
|List of the NOES.|
|Blackstone, W. S.||Hindley, C.|
|Blake, M. J.||Howick, Visct.|
|Bowes, J.||Inglis, Sir R. H.|
|Bowring, Dr.||Mahon, Visct.|
|Brotherton, J.||Mangles, R. D.|
|Buller, C.||Marjoribanks, S.|
|Busfeild, W.||Marshall, W.|
|Cavendish, hn. G. H.||Marsland, H.|
|Clements, Visct.||Morris, D.|
|Collett, J.||Muntz, G. F.|
|Colvile, C. R.||Murphy, F. S.|
|Dashwood, G. H.||Ogle, S. C. H.|
|Deedes, W.||Paget, Col.|
|Dickinson, F. H.||Plumptre, J. P.|
|Duncan, G.||Rawdon, Col.|
|Dundas, Adm.||Stansfield, W. R. C.|
|East, J. B.||Stewart, P. M.|
|Easthope, Sir G.||Strutt, E.|
|Ebrington, Visct.||Tancred, H. W.|
|Evans, W.||Trelawny, J. S.|
|Forster, M.||Warburton, H.|
|Gibson, T. M.||Wawn, J. T.|
|Henley, J. W.||Wilde, Sir T.|
|Hill, Lord M.||Roebuck, J. A.|
§ Resolution agreed to.