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the court, that the prisoner should be discharged; but, being
There was no little conflict of opinion on the Bench in the celebrated case to which we are now alluding; and if we may trust to the version of the proceedings in court, given by Lord Raymond, the judges allowed themselves greater freedom in expression, pointed language, and personal allusions, than are nowadays observed. A hundred years ago, when a member of the courts, especially if he were the chief, thought the views or arguments of his brethren on the Bench erroneous, he seems to have said so in a hard, blunt, and peremptory fashion, examples of which will be seen in the following extracts. Thus, Powys, J., stated his opinion as to parliamentary privilege (which he did briefly and pertinently) as follows:-" Another reason against the action is, that the determination of the matter is particularly reserved to the parliament, as a matter conusable by them, and to them it belongs to determine the fundamental rights of their House, and of the constituent parts of it, the members; and
the courts of Westminster shall not tell them who shall sit there. Besides, we are not acquainted with the learning of elections, and there is a particular cunning in it not known to us, nor do we go by the same rules, as they often determine contrary to our opinion without doors." In another and less laudable tone he adds, “Our business is to determine of meum and tuum where the heats do not run so high as on things belonging to the legislature; therefore, this being an unprecedented case, I shall conclude with a saying of my Lord Coke, Omnis innovatio plus novitate perturbat quam utilitate prodest.' He also said, that the defendant was "quasi a judge ;" whereupon Powell, J., took up his words sharply, saying, "I do not understand what my brother Powys means by saying he is 'quasi a judge;' surely he must be a judge or no judge.”
Holt, C. J., in his admirable and well-known judgment, remarked in the outset "My brothers differ from me in opinion, and they all differ from one another in the reasons of their opinion;1 but, notwithstanding their opinion, I think the plaintiff ought to recover. I will consider their reasons. My brother Gould thinks no action will lie against the defendant, because, as he says, he is a judge; my brother Powys, indeed, says he is no judge, but quasi a judge; but my brother Powell is of opinion that the defendant neither is a judge nor any thing like a judge, and that is true." Then, turning to the point of privilege, the Chief-Justice continuing in a bantering tone, "But my brother says we cannot judge of this matter, because it is a parliamentary thing. Oh! by all means be very tender of that! Besides, it is intricate, and there may be contrariety of opinion." "But they say, that this is a matter out of our jurisdiction, and we ought not to enlarge it. I agree we ought not to encroach or enlarge our jurisdiction; by so doing we usurp both on the right of the queen and the people; but sure we may determine
1 This reminds one of the well-known judgment of Maule, J., when a difference of opinion existed among the members of the Bench-"I agree,” said this caustic judge, "with the conclusions of my brother A, for the reasons offered by my brothers B. and C."
on a charter granted by the king, or on a matter of custom or prescription, when it comes before us, without encroaching on the parliament. And, if it be a matter within our jurisdiction, we are bound by our oaths to judge of it. This is a matter of property determinable before us. Was ever such a petition heard of in parliament, as that a man was hindered of giving his vote, and praying them to give him remedy? The parliament undoubtedly would say, Take your remedy at law. It is not like the case of determining the right of election between the candidates.
"My brother Powell says, that the plaintiff's right of voting ought first to have been determined in parliament, and to that purpose cites the opinion of my Lord Hobart (318), that the patron may bring his action upon the case against the ordinary, after judgment for him in a quare impedit, but not before. It is indeed a fine opinion, but I do not know whether it will bear debating, and how it will prove when it comes to be handled. For, at common law, the patron had no remedy for damages against the disturber, but the statute 13 Ed. I., st. 1, c. 5, s. 3, gives him damages; but if he will not make the bishop a party to the suit, he has lost his remedy which the statute gives him. But, in our case, the plaintiff has no opportunity to have remedy elsewhere. My brother Powys has cited the opinion of Littleton on the statute of Merton, that no action lay upon the words, 'si parentes conquerantur,' because none had ever been brought, yet he cannot depend upon it. Indeed, that is an argument when it is founded upon reason, but it is none when it is against reason." A little further on he declares, that "We must not be frighted when a matter of property comes before us, by saying it belongs to the parliament; we must exert the Queen's jurisdiction. My opinion is founded on the law of England.”
Chief-Justice Holt certainly was not a man easily "frighted." His language and demeanour savour of courage as well as honesty. He took occasion, during the argument, to exclaim, "Let all people come in and vote fairly. It is to support one or the other party to deny any man's vote. By my consent, if such
an action were to be tried before me, I would direct the jury to make him pay well for it; it is denying him his English right!' It must be remembered that the disputes on privilege between the courts of law and the House of Commons was at this time strongly coloured by the mutual enmity which existed between political parties. The House of Commons was at this time vehemently Tory. Sir John Holt was a zealous Whig as well as an independent judge. In the sketch of the life of this eminent judge by Lord Campbell, the biographer refers to a fictitious but well-invented anecdote, which, he observes, obtained great currency. This obviously arose from its being characteristic of the parties concerned, and it was probably received with all the less question as it represents the popular side of the question in a triumphant attitude. For this reason, as well as because it shows how authenticity is a quality disregarded in personal tales of this kind, it is worth repeating. "The sergeant-at-arms of the Commons," says the veracious story-teller, "presented himself before Chief-Justice Holt, sitting on his tribunal, and summoned him to appear at the bar of the House, to purge himself of his share of the contempt. That resolute defender of the laws said, with a voice of authority, 'Begone!' Soon after comes the Speaker in his robes and full-bottom wig, attended by many high-privilege members, and said, 'Sir John Holt, Knight, Chief-Justice of her Majesty's Court of Queen's Bench, in the name of the Commons of England, and by their authority, I summon you forthwith to appear at the bar of the House, to answer the charge there to be brought against you for divers contempts by you committed, in derogation of their ancient and undoubted privilege.' 'Go back to your chair; Mr. Speaker,' calmly replied his lordship, 'within these five minutes, or you may depend upon it I will lay you by the heels in Newgate. You speak of your authority, but I tell you that I sit here as an interpreter of the laws and a distributor of justice; and if the whole House of Commons were in your belly I would not stir one foot.' The Speaker quailed under the rebuke, adds the faithful chronicler, and quietly retired with his high-privilege
body-guard; and the Commons, terrified to contend longer with such an antagonist, let the matter drop." This last polish to the tale is enough to demonstrate its inaccuracy, for it was the prorogation of parliament which caused "the matter to drop."
The dispute, however, had the effect of producing for the Whig party great accession of numbers at the next election, and for Sir John Holt increased credit and reputation. The part which this learned judge took in the discussion, as well as that which fell to the lot of one of his successors-Lord Ellenborough-is described in Lord Campbell's "Lives of the ChiefJustices." But the comments which the biographer makes on the general question are not, in our opinion, unimpeachable. Sir John Campbell was Attorney-General in 1839, and argued the case of Stockdale v. Hansard (9 Ad. & El. 1), on behalf of the defendants, advocating the right of privilege very elaborately, and as unsuccessfully. Lord Denman, on this occasion, it will be remembered, expressed no little indignation with certain of the arguments adduced on behalf of the House of Commons, and with their tone generally. A lingering admiration may be traced in the author, for the arguments offered and doctrines propounded by the Attorney-General of 1839; and some recollection of the determined judgment, and some displeasure at the uncompromising language, of Lord Denman, may be observed in more passages than one of Lord Campbell's popular volumes.
Lord Holt, let it be remembered, who was so jealous of privilege being abused, is the great authority for the general principle, that the House of Commons has power to commit for contempt; but if, as in the Queen v. Paty, the House stated in their warrant that to be a contempt which was no contempt, he held there was an excess of jurisdiction on their part, against which the courts of law would protect a subject applying to them. He was followed in this view in the judgment delivered in Burdett v. Abbott (16 East. 1). Lord Ellenborough in this case repeated it in the well-known distinction which he made between warrants of commitments by the House. If, said he, the commitment were for contempt of the House "generally, I