HL Deb 04 February 1840 vol 51 cc1160-9
Lord Brougham

had to present a petition from two individuals placed in a situation of peculiar difficulty and hardship, and in circumstances strange, unprecedented, and alarming; he presented to their Lordships a petition from William Evans, and John Wheelton, Esqrs., Sheriffs of London and Middlesex, and the petition appeared to be presented to the House, not merely in its Legislative capacity, but as the highest Court of Judicature known to the laws of these realms, and from officers of a court on whose judicial decisions their Lordships might have to sit in judgment, as also upon the conduct of the sheriffs as officers of that court over which their Lordships' House had unquestioned jurisdiction. The petition was to this effect— and in regard to the great hardship of this case, and in regard to the high and paramount importance of the subject, and in regard, he would venture to add, to the respectful, touching, and submissive nature of the appeal made to their Lordships, he would venture to engage for the statements of the petition that attention which their Lordships always gave to the petitions of every class of their fellow-subjects, when those fellow-subjects bore towards their Lordships the relations which he had taken the liberty to point out. The petitioners addressed their Lordships as the Supreme Court of Judicature of the country, and they asked for justice according to law, and he for one must say, that in his experience he knew of no justice—he knew of nothing called justice, unless it was justice according to the law —the known and established law of the realm. The petitioners said, that by divers charters the office of sheriffs of the city of London, and the county of Middlesex, were vested in the Lord Mayor, commonalty, and citizens of London. That the sheriffs were elected by the livery-men of London in Common Hall assembled, and were compellable to serve such office under the penalty of a heavy fine. That on the day of the last annual election, the petitioners were elected and took upon themselves the duties of the office, the consent of the Crown being given to their appointment by the Cursitor Baron. And previous to entering on the office they took the oath that they would truly serve all the Queen's writs, according to the best of their skill and knowledge, and that, pursuant to that oath, they had duly executed all the Queen's writs which were directed to them. The petitioners then set forth, that a writ of inquiry was directed to them, in consequence of the verdict of the Court of Queen's Bench, that judgment was entered, and a jury empanelled to assess the damages in consequence of the default of the defendant, that the writ of inquiry was executed before one of their officers, the under-sheriff, and the jury returned a verdict of 600l. damages. The petitioners then set forth a resolution of the other House of Parliament, asserting, that by the law of the privileges of Parliament, the House had the sole and exclusive jurisdiction to determine on its privileges, and that the institution of any suit or action, for the purpose of bringing those privileges into discussion in any other place than Parliament was a high contempt, and rendered the parties amenable to punishment. So that the Chief Justice who tried the case, the Judges before whom the demurrer was argued, the counsel who argued the demurrer, and the solicitor who instructed those counsels, were punishable for enforcing the law of the land, provided it brought in question the alleged privileges of the House of Commons. The petitioners then proceeded to state that instructions were nevertheless given to the Attorney-general to appear and defend an action in which the rights and privileges of the House of Commons were brought into question, notwithstanding that after a discussion of three or four days the House had resolved that parties were punishable for bringing actions which involved the question of privileges, or the alleged privileges of the House of Commons. Instead of proceeding, in the first instance, to punish the breach of privilege, they appeared, according to the statement taken from their own books, to have made themselves parties and accomplices to that which eight-and-forty hours before they had declared to be highly Culpable, Well, then, Mr. Attorney-ge- neral was instructed to plead, and a demurrer was put on the record. Now, that was as much as to plead that they admitted the fact as to the position in which the parties stood to each other. But they denied that the publication was beyond the privilege of the House. Why, that raised the whole question. It brought the whole matter before the Court of Queen's Bench. It entitled the Judges of that Court to become parties to the question, which could not be if the House of Commons had not instructed the Attorney-general to plead—thus putting it to the Court to decide upon the question upon which the House of Commons and the plaintiff were at issue, the Attorney-general having been ordered to bring the question of privilege before the Court of Queen's Bench for its decision—whereas, eight-and-forty hours before, the House of Commons had declared it to be a highly punishable offence for any individual to question the privileges of Parliament. The petitioners further set forth that the question was fully argued, and that the judgment was given for the plaintiff. On that occasion the Court allowed the demurrer—that is, disallowed the plea set up by the Attorney-general, acting under the orders of the House of Commons. They then set forth, that the aforesaid proceedings were liable to be reviewed, and that, if there were any error in the decision of the Court of Queen's Bench, that might be brought before the other Judges sitting in the Exchequer Chamber as a Court of Error, or before their Lordships' House sitting as the highest Court of Appeal. But that no writ of error had yet been prosecuted; and further, that as the House of Commons had allowed the decision of the Court of Queen's Bench to stand without appeal, as far as the petitioners knew the law of the land, the privilege must be held to offer no defence. The petitioners then state, that after the writ of inquiry had been executed, and judgment had been given—after the execution had been taken out, and a levy made to the amount of the sum in question, the fruit of the sale of the property of the defendant in the suit—they state that in consequence of that amount being in their hands to be made over according to a writ of fieri facias and having been levied by them in obedience to that writ which they had sworn to obey, the House of Commons, as appears by their printed votes, passed a resolution, stating that it appeared that an execution in the case of Stockdale v. Hansard, had been levied to the amount of 640l. by a sale of the property of the defendant in contempt of these privileges of the House, and that such money now remains in the hands of the sheriffs of Middlesex—that said sheriffs be ordered to refund the said amount forthwith to the defendants. Then the sheriffs had a writ directed to them—the Queen's writ issued by the authority of the Court of Queen's Bench, which they were bound to obey, and which they had also sworn faithfully to execute. That writ had called on them to pay the money, not to the House of Commons, but to the plaintiffs. Accordingly when they had been ordered to pay the money to the defendants, contrary to their oaths, to their duty, and to their office, they refused to do so, but kept it for the parties to whom it was due by the law. They, not having expressed their intention to comply with the order were committed by the Sergeant-at—Arms to custody, where they still were. They humbly submit that the order was invalid in point of law, and an infringement of the rights of the Crown, inasmuch as it was an infringement on the rights of the party as decided on by a Court of Law. They then set out that a writ of Habeas Corpus had been applied for, for, the purpose of bringing them before the Court of Queen's Bench—that they were brought up, and that the writ of Habeas Corpus was returned, because the warrant did not set forth specifically the grounds of their commitment, but merely set forth generally that they had been confined by an order or warrant of the House of Commons, for a breach of privilege and a contempt of that House, without stating in what that contempt consisted, so that it was a matter of course they should remain in custody, because they could not tell why they had been committed. If any Court chose to conceal the cause of its writ, or to wrap its warrant in general terms, no other Court had then the power to inquire into it by going further into the case than the warrant had set forth. These were the grounds on which the Court of Queen's Bench had proceeded, and which would have equally applied to any other Court—would equally apply to a writ from the Court of Common Pleas. No matter how absurd the grounds on which the warrant had been issued, there was nothing to be done when the ground of it had not been stated. The Court of Queen's Bench had accordingly been prevented by the nature of the warrant in question, from proceeding any further. The prisoners were still in custody, and had no prospect of being released, and they, consequently, wished to throw themselves on the protection of the House. They concluded their statement as follows:— Wherefore, throwing ourselves on the justice and protection of the highest court of judicature in the realm, your petitioners humbly pray your Lordships' House to afford them such assistance in the circumstances of the case as to your Lordships' House will seem fit, to the end that the petitioners, being officers of the law, and sworn to execute it, in obedience to a writ to them directed, may not suffer in their persons for the necessary discharge of their duties according to their oaths, and which, if they had failed to do, they would have been liable by the law to the severest punishment. He had not, the noble Lord proceeded, stated the whole of the case, but had merely given the substance of the complaints of those parties. He had now only to add, that he felt anxiety, and, he should say, sorrow at their unhappy lot, because of the peculiar circumstances of the case, and in the relation in which their Lordships stood to the other House of Parliament, viz., as a co-equal and not inferior Chamber of Parliament, on a point of privilege, he did not see, however great their inclination might be, to rescue those gentlemen from the embarrassments of their position,—he did not see how their Lordships could proceed in the case. Every man who had examined the nature of the proceedings would find proper and just palliatives in the conduct of the sheriffs. He therefore, for fear he should exceed that measure of opinion which could be drawn by any one who had inquired into those proceedings, and for fear he should, on the other hand, fail in stating that opinion, he would only refer to them and say, that those proceedings, and such proceedings, whatever may be their nature, left the sheriffs remediless in their Lordships' House. They could afford them no protection it was true, but they were bound to listen to the prayers of those petitioners. He might observe, that if no petitions were presented, unless when it was thought they would be of use, much of their Lordships' time would be spared. He wished to express the feeling which he entertained with respect to the powers of the House, because he found that they might be precisely in the same situation in which the other House was now, and that that other House had claimed for their Lordships the same privileges which they had claimed for themselves. God forbid, however, that he should ever be called upon to act on that precedent. God forbid that their Lordships, the highest court of justice in the kingdom, and an assembly of rational men—should be ever called on, he would not say to imitate the proceedings adopted elsewhere, but to take such steps as had followed from the prosecution of such proceedings. He would not say one word on the decision of the Court of Queen's Bench, which had been given after the fullest arguments, not only on the part of counsel, but after the fullest arguments on the part of the Bench itself, to justify its decision. If he were now to state what was his opinion on the law of the case, he should be doing what would be presumptuous as well as superfluous; presumptuous, because the Court of Queen's Bench had decided the case; and superfluous, because the House of Commons had acquiesced in that decision. He had other reasons, however, for not giving his opinion. He might be called on hereafter, as a Member of their Lordships' House, to be a judge on the matter. The other House might be influenced perhaps by opinions from without, to change their determination, and their Lordships might then have a different course to adopt; and he knew not but as another House had, in the course of forty-eight hours, changed its own course, and its own sentiments, and as it had come down and descended from high privileges to the constitutional law of the land—for all that he knew their Lordships' judgment might yet be appealed to, and it might be to reverse the decision adopted elsewhere. He would not make any observations on the decision of the Court of Queen's Bench, and he would add, that whenever their Lordships might be in the same situation as the other House, they would have the consistency and the manliness, in the first place, to act on Thursday, according to their declared and solemn decision on Tuesday. In the next place, he hoped they would avoid saying that whoever went to law, in such a manner as to bring their privileges in question, before that court of law, should be considered guilty of a breach of privilege, and then ordering their own servant to go to law, and to place a plea on record in that very court of law, pleading their privileges, and thus bringing those very privileges under the cognizance of the court—and then saying, that the Court of Law was guilty of a breach of privilege, for deciding on the very question which they themselves had brought before the court. He hoped also that they would have the manliness and the courage, and the justice, if any officer of any court of law, be it high or be it low, should obey the order of his lawful superiors, the courts of law, and should bring any act of his in obedience to their orders, and to the obligation of his oath, or any act which they might deem a breach of the privileges—he trusted they would have the courage, as well as the justice, to proceed against the originators, and not against the agent, to attack the master and not the servant, to commit the Judges, not the Sheriffs. If the Sheriffs had not obeyed the orders of the court, they might have been committed— they were bound to obey the orders of the courts of law, and they had only done their duty according to the law and the obligation of their oath. He trusted that that House would never take advantage of persons under such circumstances; but he also hoped that if that had been done, and their Lordships had committed offenders—for if they were not offenders, then those who had commuted them were guilty of offence—then he hoped that they would not suffer persons to come in procession to compliment the prisoners on having set their authority at defiance, and to congratulate them on this martyrdom to their principles, even in their own cells; he trusted they would not suffer them to receive these congratulations for having disobeyed the law of Parliament, and preferred the law of the land, under the eye and within ear-shot of the House itself. He ventured to hope that they would pursue a courage more consistent with their own dignity, and with justice, and that they would not be led astray by any other example, be the party ever so exalted, or ever so powerful; although, with regard to this power, he ventured to entertain very grave doubts. One word more as to the administration of justice. The Sheriffs were in custody, and of the hundred of writs which were issued, not one could be executed by themselves. All these writs must be executed by the Under-Sheriff, who held his appointment under the Sheriff, which appointment was revokeable at pleasure, and the Sheriff was answerable for every act or omission of the Under-Sheriff; for every misfeasance of his—for every non-feasance of his, to the utmost extent of his fortune, and if his fortune was not sufficient, then in his person. It was one thing for a man to sleep comfortably when out of prison, able to superintend his own servants, to know what they did, and to give them orders; and it was another thing for a person when locked up between four walls, and having no control over his servants, except the Under-Sheriff chose to come and communicate with him. Therefore he did anticipate if the Sheriff were not let out of prison the day after tomorrow, he might revoke the appointment of the Under-Sheriff, and then there could be no writs executed. A great deal of trash had been talked about the Coroner executing writs—he doubted if the Coroner might be trusted—but he could execute a writ in one case, and in one case only, and that was when it was to be served on the Sheriff himself. All writs were directed to the Sheriff, and not to the Coroner. The writs went to the Sheriff, he returned that he could not execute them, because he was detained in custody by the House of Commons. The consequence would be dreadful—there would be a complete end to the administration of justice, and in that case, he thought matters would be soon reversed, and instead of the Sheriffs petitioning the House of Commons to release them, they would see the House of Commons petitioning the Sheriffs to appoint an Under-Sheriff. Neither House of Parliament—for he applied the same rule to their Lordships that he did to the House of Commons—could long stand, unless they were very clearly right, and the Judges were clearly wrong, a conflict with the highest Judges of the land, or succeed in an attempt to commit their almost sacred persons to custody on a question of privilege. The Houses of Parliament would not be able to withstand the host of petitions from suitors of the courts. The whole administration of justice would be stopped and paralysed. These observations he thought it was his duty to make in presenting the petition in the case of these individuals, because he felt that in this case, unfortunately, their Lordships had not any opportunity of deriving information from other sources.

Viscount Melbourne

I need not say one word as to the reception of the petition which my noble and learned Friend has just presented. Of course it is known to all your Lordships, that every person who complains of a wrong done, and all persons who conceive that they are suffering under an injury, have the undoubted, the undisputed right to state that injury, and to ask redress at the hands of the House. But, at the same time, I feel it my duty to rise and say, that I do not at all agree with, or acquiesce in, the observations of my noble and learned Friend. It is impossible to mistake or misapprehend the scope, the meaning, the force, of his observations. It is impossible not to feel that those observations contained a complete and decided censure on what we know by their votes to have been the course pursued by the other House in vindication of their just—in vindication of what they considered their just—privileges. Now, my Lords, considering the nature of that question—the quarter in which it has arisen—the parties who are principally engaged in it —I think that my noble and learned Friend would have acted more wisely, more prudently, and with more propriety—admitting, as my noble Friend does, that this House has not the power to interfere—if he had altogether abstained from making the observations which he has just addressed to your Lordships.

Lord Brougham

said, his noble Friend was perfectly right in the interpretation which his noble Friend had put on what he said. He had expressed that opinion, not on the point of law in dispute, but on the conduct of the parties in this instance, which was a perfectly different matter: but if there were any risk or danger attending what he had said, of any interference of this House with the other House of Parliament, it was his comfort to think that that House could not be damaged at all by it. It was himself alone that could suffer. It was very well to say, and he knew that he was nominally protected in what he might say in his place in Parliament; but there was nothing to prevent the House of Commons directing the Sergeant-at-Arms to take him into custody as he was getting into his carriage —voting him guilty of a breach of privilege—committing him — and, when he sued out his habeas corpus, concealing the special contempt for which they had committed him, contenting themselves with stating, in general terms, that he had been guilty of contempt, but concealing the fact, that that contempt consisted in making a speech in his place in Parliament, and in that case, he must remain in custody until the prorogation. That was the manly course that had been pursued with regard to the sheriffs; they had concealed the grounds of the commitment, and thus they were prevented from obtaining any redress.

Petition laid on the table.