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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
would, neither in the case of that court or any other of the superior courts, inquire further ; but if it did not profess to commit for a contempt, but for some matter appearing in the action, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law and natural justice, we must look at it and act upon it as justice may require, from whatever court it may profess to have proceeded.” When the Speaker of the House of Commons, having pleaded, in the lastmentioned case, that Sir Francis Burdett had published, in Cobbett's Weekly Register, a libel on the privileges of the House, and that the latter body having so resolved, had ordered the defendant to issue his warrant to commit Sir Francis to the Tower, it was held a good plea.
Stockdale v. Hansard is the next case which may be here adverted to, the action being for defaming the plaintiff's character, in charging upon him the publication of obscene works. The “ defamation ” had been printed under the order of the House of Commons, which order was pleaded ; and it was alleged that the right to make such an order was an essential incident to the due performance of parliamentary functions. This, said Lord Denman, amounts to “a claim for an arbitrary power to authorize the commission of any act whatever on behalf of a body which is admitted not to be the superior power in the state.” He then proceeded to inquire whether “the House of Commons, by claiming any thing as its privilege, thereby makes it a matter of privilege ;” and further, whether “its own decision upon its own claim is binding and conclusive.” The Chief Justice put the question quite simply when he said—“The learned counsel for the defendant contends for his legal right to be protected against all consequences of acting under an order issued by the House of Commons, in conformity with what that House asserts to be its privilege, nor can I avoid then the question whether the defendant possesses that legal right or not.” Elsewhere this
point is also succinctly put, as resolving itself into the question, “Can one branch of the legislature overrule the law?"
The report of the committee of the House of Commons appointed to examine into the subject under consideration, in the case of Stockdale v. Hansard, was cited in the argument, and contains the arguments adopted, and the views professed, by that House. The 3 & 4 Vict., c. 9, however, settles by statute . the particular question then in debate.
The claim of the House of Commons to preclude the court from inquiring into the legality of an act by a resolution that it had the power to do the act complained of, is so clearly stated by Pattison, J. (9 Ad. & El., 192), that it is worthy of repetition. “If,” says he, “the doctrine be true that the House, or rather the members constituting the House, are the sole judges of the existence and extent of their powers and privileges, I cannot see what check or impediment exists to their assuming any new powers and privileges which they may think fit to declare.” Now surely this is so, and to stop the courts of law from determining the lex et consuetudo parliamenti, because the courts have no knowledge of the subject, is evidently inconsistent with the declaration that the said lex et consuetudo form part of the common law of the land.
The case of the Sheriff of Middlesex (11 Ad. and El., 273), arose out of the case of Stockdale v. Hansard. The return to the habeas corpus, sued out by the sheriff against the sergeant-at-arms, simply certified that the latter functionary detained the sheriff for “contempt” of the House. The facts which constituted the alleged contempt were not shown by the warrant cited in the return. All the authorities on the subject seem to show that such a return precludes a court of law from investigating the adequacy of the causes of commitment. Hence it is always within the power of the House of Commons to evade any questioning of its commitments, by means of its officer stating in general terms that a contempt has been committed. “It would be unseemly," as Lord Denman in the last-mentioned case significantly observed, " to suspect that a body acting under such sanctions as a House
of Parliament, would, in making its warrant, suppress facts which, if discussed, might entitle the person committed to his liberty. If they even did so act” (as, in point of fact, was just what they were doing, and every one knew it), “I am persuaded that, on further consideration, they would repudiate such a course of proceeding. What injustice might not have been committed by the ordinary court in past times if such a course had been recognized ? As, for instance, if the recorder of London in Bushell's case had, on the warrant of commitment, suppressed the fact, that the jurymen were imprisoned for returning a verdict of acquittal, I am certain that such will never become the practice of any body amenable to public opinion.”
The case of Howard v. Gossett (the fourth action between these parties), which came on for trial on the 15th November, 1844, arose from the sergeant-at-arms having taken the plaintiff into custody, under warrant of the House, for contempt. In the Queen's Bench judgment was given for the plaintiff. On the writ of error this judgment was reversed. Looking at the differences of opinion, and the language employed by the learned men who reviewed the subject, we cannot say that this case has left it in a satisfactory position. Thus Coleridge (J.), in his eloquent judgment (10 Ad. and El., 377), said :-“The defendant's first point states that he, being an officer of the House, is protected by an order of the House directing bim to do to the plaintiff the identical act complained of ; and such an order is of itself, and without more, an answer to the action! In the argument, this point (although stated to be unnecessary for the defendant) was insisted upon. No exception was admitted to its truth ; no limit imposed upon the generality of the propositions. What the quality of the act commanded may be is not to be inquired into; it is enough that the House has ordered it, and, as the House is irresponsible, so must its office be. I do not wish to misrepresent the language used; but I think I am bound so to understand it as resting the defence of the officer not on the quality of the thing commanded, but on the unlimited extent of the authority from which the command proceeded. If this were not so, language
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