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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 Cobbelts 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 he 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 upseemly," 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, 1814, 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 him 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
VOL. VII, NO. XIII.
most alarming has been wantonly or carelessly used by those whom I, with reason, respect too much to believe them capable of acting in a wanton or careless spirit in any matter ; least of all, in such a matter as this. But, so understood, I venture to say
I that the proposition is not only untenable, but monstrous. Extreme as it is, it might not be unreasonably met by extreme suppositions. A proposition universally affirmative cannot be true, if the negative of it be true in any one particular; and it is no answer that an abuse of such extreme powers in our representative body cannot be respectfully or even decently presumed. I presume nothing. We ought to have, I admit, the fullest confi. dence in the humanity, justice, honour, and integrity of the House. It is entitled to our most sincere veneration ; but we have a right to consider our liberties as independent of any such qualities in those who are in authority; as resting on the law; as things not
7; precarious, but which we hold by right and charter. When Lord Camden delivered his memorable judgment on Entick v. Carrington (19 How. St. Tr., 1029-1066), he thought it a legitimate mode of proving the illegality of the warrant, to show the consequences of its being supposed to be legal on the security of the private papers and confidence of every Englishman; how it placed at the discretion of the Crown the secret papers, the cabinets and bureaux, of every Englishman in the land, however innocent. If time allowed, and I was so disposed, how much more strong a picture, without the slightest exaggeration of a feature, might be drawn of the state in which we should live by law, as to security of property, liberty of person, safety of character, or life itself, if the solicitor-general's proposition was really sanctioned by that law! But it is needless, and I gladly forbear. It is enough to
. say, that the law is supreme over the House of Commons as over the Crown itself. If the limits of the law be passed by either, for
, the most satisfactory reasons they are indeed themselves responsible; but the law will require a strict account of the act in the persons of their agents; and these, according to the nature of the illegality, will be answerable civilly or criminally.”
Elsewhere when considering the proposition, whether the fact
of a warrant being issued by order of the House would have been
a an answer in law to an action for an arrest, the same judge remarked :-“In truth, common learning on the constitution, common justice and common sense, equally revolt against it. If such a limitation on the birthright of Englishmen existed—so important, so remarkable in its cause and consequences-it must have been stated, though it would have been recorded with regret, and, I think, something like shame, in some one of those many
definitions of our most valuable right-tbe right of personal liberty—with which our text-writers abound.”
In the Exchequer Chamber, Parke (B.) delivered judgment as well for himself as for his brethren-Alderson, Coltman, Maule, Rolfe, and Cresswell—and this judgment has left the questions of principle referred to in the court below, unconfirmed and unreversed. “We deem it right,” says the learned judge, "to abstain from giving an opinion upon some of the questions as to the privileges of the House, which were discussed by the learned counsel, because our judgment in no way depends upon them. We need not, therefore, decide whether the House of Commons is the sole judge of its own privileges, not merely when it is adjudicating on their alleged violation, but in all cases; so that whatever it commands must be deemed to be in conformity to them, and the mere order of the House, under all circumstances, is a sufficient answer precluding all inquiry into its legality by any ordinary court."
The reversal of the judgment below, therefore, was made to depend expressly upou technical ground as to the validity of the form of the warrant. At the same time, a proposition is laid down by the Court in Error, under cover of which & repetition of the unseemly litigation may occur :-“Writs issued by a superior court not appearing to be out of the scope of their jurisdiction, are valid of themselves without any further allegation, and a protection to all officers and others in them, and acting under them, and that although on the face of them they be irregular.” After these specimens of discordant opinions, we think that our readers will agree with Mr. May, that it would " be presumptuous to define