« PreviousContinue »
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 that the proposition is not only untenable, but monstrous. Extreme as it is, it might not be unreas
asonably 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 confidence 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 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 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 a 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
the jurisdiction of the courts, or the bounds of parliamentary privilege." The only conclusion at which one could arrive safely, perhaps, would be that of Lord Kenyon (in R. v. Wright), who said of a certain proceeding, that it was “by one branch of the legislature, and therefore we cannot inquire into it;" but "I do not say,” added he-to put the balance of doubts as before—“that cases may not be put in which we would inquire whether the House of Commons were justified in any particular measure.” “ With these conflicting opinions,” says Mr. May,
as to the limits of parliamentary privilege, and the jurisdiction of courts of law, if either House of Parliament insist upon precluding other courts from inquiring into matters which are held to be within its own jurisdiction, the proper mode of effecting that object is the next point to be determined. If the courts were willing to adopt the resolutions of the House as their guide, the course would be clear. The authority and adjudication of the House would be pleaded, and the courts, acting ministerially, would at once give effect to them. But if the courts regard a question of privilege as any other point of law, and assume to define the jurisdiction of the House, in what manner, and at what point, can their adverse judgments be prevented, overruled, or resisted ? The several modes that have been attempted will appear from the following cases; but it must be premised, that when a privilege of the Commons is disputed, that House labours under a peculiar embarrassment. If the courts admit the privilege, their decisions are liable to be reversed by the House of Lords; and thus, contrary to the law of parliament, one House would be constituted a judge of the privileges claimed by the other. And if the privilege be denied by the courts, the House has no other remedy, in the ordinary course of law, but an ultimate appeal to the House of Lords. It is difficult to determine which alternative is the least satisfactory – the denial of a privilege by the Lords on a writ of error, or on application to them for redress when the authority of the House has been discredited by an inferior tribunal. With these perplexities before
them, it is not surprising that the Commons should frequently have viewed all legal proceedings, in derogation of their authority, as a breach of privilege and contempt. They have restrained suitors and their counsel by prohibition and punishment, they have imprisoned the judges, they have coerced the sheriff; but still the law has taken its course."
That the Houses of Parliament should possess and exercise every requisite power for sustaining their high functions, must be the desire of all who value constitutional government. That they should not claim or usurp more powers than are requisite, should be the wish of each English subject who appreciates liis own liberty and the advantages of living in a free country. A body of six hundred and fifty-four men may prove as pressing a tyranny, if irresponsible, as an emperor with a government of bayonets. The real freedom of a country depends upon the supremacy of the law, not of a legislative assembly. “Privileges," if admitted, are so admitted because they are a part of the law. If they clash, it is but the collision of one part of the law with another part. When this unfortunately happens in other branches of our system, we apply a remedy by stricter definition and more accurate limitation; or by adopting a procedure by which each occasion of the conflict of domestic laws may be considered on its merits, and decided upon well-established principles.
The dignity of the House of Commons, in respect of its jurisdiction, would suffer less by adopting the latter suggestion than by again sustaining damaging defeats, or more damaging victories, at the hands of courts of law. Jealousy and touchiness arise frequently from uncertainty of position and the natural timidity of losing something of it. If the essential boundaries of parliamentary privilege (however wide they may be) were known and fixed, the House would suffer little panic as to their infringement. In the “Proæmium” to the Fourth Institute occurs the following passage, which at least is free from suspicion :
Among many and various similitudes and characteristic conceits of phrase, it is said—“For as the boily of man is best ordered
when every particular member exerciseth his proper duty, so the body of the Commonwealth is best governed when
serviceable court of justice exerciseth his proper jurisdiction. So in the Commonwealth (justice being the main preserver thereof), if one court should usurp, or encroach upon another, it would introduce uncertainty, subvert justice, and bring all things in the end to confusion.” The learned author thereupon considers the various jurisdictions. “And thus, for all our pains, wishing the benevolent reader all the profit, we (favente Deo et auspice Christo) begin with the high and most honourable court of parliament:" which we, however, for the present have done with; entertaining, nevertheless, the same amiable wish for our benevolent readers.
We will, however, add one word more, suggested by the perusal of Mr. May's book :—It has attained to a position of authority, not only in England but in those of her colonies also, where parliamentary institutions are growing, modeled on that of the mother country. Whilst our colonial brethren enjoy the advantage of the accumulated experience of centuries, the forms and principles which have grown here are proved well adapted to the wants of an English and free people wherever planted. In some points, however, relating to matters of privilege, such as those we have been led, in the preceding pages, to discuss, the difficulties which the mother country has drifted into may, we trust, be avoided by the wisdom of her offspring duly profiting by her troublous experience.