ÆäÀÌÁö À̹ÌÁö
PDF
ePub

VI.

true that, in a general sense, the law of Parliament is the Chapter
law of the land: but if one law should appear to clash with
the other, how are they to be reconciled? Is the declaration
of one component part of Parliament to be conclusive as to
the law; or are the legality of the declaration, and the
jurisdiction of the house, to be measured by the general law
of the land? In these questions are comprised all the
difficulties attendant upon the conflicting jurisdictions of
Parliament, and of the courts of law.

Authorities in favour of. the exclu

It is contended, on the one hand, that in determining matters of privilege the courts are to act ministerially rather than judicially, and to adjudicate in accordance with the law of Parliament, as declared by either house; while, on the other, it is maintained that, although the declaration of either house of Parliament, in matters of privilege within its own immediate jurisdiction, may not be questioned, its orders and authority cannot extend beyond its jurisdiction, and influence the decision of the courts, in the trial of causes, legally brought before them. From these opposite views it naturally follows that, in declaring its privileges, Parliament may assume to enlarge its own jurisdiction, and that the courts may have occasion to question and confine its limits.

The claim of each house of Parliament to be the sole and exclusive judge of its own privileges has always been asserted, in Parliament, upon the principles, and with the limitations which were stated on p. 62, and is the basis of the law of Parliament. This claim has been questioned in the courts of law: but before the particular cases are cited, it will be advisable to take a general view of the legal authorities which are favourable or adverse to the claim, in its fullest extent, as asserted by Parliament.

The earliest authority on which reliance is usually placed, in support of the claim, is the well-known answer of the sive juris judges in Thorpe's case (see p. 105). In the 31st Henry VI., on the Lords putting a case to the judges, whether Thomas Thorpe, the Speaker of the Commons, then imprisoned upon judgment in the Court of Exchequer, at

diction of Parliament.

Thorpe's

case.

VI.

Chapter the suit of the Duke of York, "should be delivered from prison by virtue of the privilege of Parliament or not," the Chief Justice Fortescue, in the name of all the justices, answered

"That they ought not to answer to that question, for it hath not been used aforetyme, that the justices should in anywise determine the privilege of this High Court of Parliament; for it is so high and so mighty in its nature, that it may make law, and that that is law it may make no law; and the determination and knowledge of that privilege belongeth to the Lords of the Parliament, and not to the justices." 1

In regard to this case it must be observed that no legal question had come before the judges for trial, in their judicial capacity: but that, as assistants of the House of Lords, their opinion was desired upon a point of privilege which was clearly within the immediate jurisdiction of Parliament, and was awaiting its determination. Under these circumstances it was natural that the judges should be reluctant to press their own opinions, and desirous of leaving the matter to the decision of the Lords. That part of their answer which alleges that Parliament can make and unmake laws, as a reason why the judges should not determine questions of privilege, can only apply to the entire Parliament, and not to either house separately, nor even to both combined; and, consequently, it has no bearing upon the jurisdiction of Parliament, except in a legislative

sense.

The principle of this answer was adopted and confirmed Sir E. Coke. by Sir Edward Coke, who lays it down that "whatever matter arises concerning either house of Parliament, ought to be discussed and adjudged in that house to which it relates, and not elsewhere; "2 and again, that "judges ought not to give any opinion of a matter of privilege, because it is not to be decided by the common laws, but secundum leges et consuetudinem Parliamenti; and so the judges, in divers Parliaments, have confessed." 8

15 Rot. Parl. 240; see also Lord Ellenborough's observations upon this case, 14 East, 29.

4th Inst. 15.

3 4th Inst. 15; see also Lord Clarendon's definition of the Commons' jurisdiction, Hist. Rebellion, vol. ii. book iv. p. 195, 8vo edit. Oxf.

Lord C. J.
North.

Mr. Justice
Powell.

Hawkins.

Lord C. B.
Comyn.

In the case of Barnardiston v. Soame, in 1674, Lord Chief Chapter Justice North said

"I can see no other way to avoid consequences derogatory to the honour of the Parliament but to reject the action, and all others that shall relate either to the proceedings or privilege of Parliament, as our predecessors have done. For if we should admit general remedies in matters relating to the Parliament, we must set bounds how far they shall go, which is a dangerous province; for if we err, privilege of Parliament will be invaded, which we ought not in any way to endamage." But in the same argument he alleged " that actions may be brought for giving Parliament protections wrongfully; actions may be brought against the Clerk of the Parliaments, Serjeant-at-arms, and Speaker, for aught I know, for executing their offices amiss, with averments of malice and damage; and then must judges and juries determine what they ought to do by their officers. This is in effect prescribing rules to the Parliament for them to act by."1

In the case of Paty, one of the Aylesbury men, brought up by habeas corpus, Mr. Justice Powell thus defined the jurisdiction of the courts in matters of privilege

"This court may judge of privilege, but not contrary to the judgment of the House of Commons." Again, "This court judges of privilege only incidentally; for when an action is brought in this court, it must be given one way or other." "The court of Parliament is a superior court; and though the King's Bench have a power to prevent excesses of jurisdiction in courts, yet they cannot prevent such excesses in Parliament, because that is a superior court, and a prohibition was never moved for to the Parliament,” 2

It is laid down by Hawkins that

"There can be no doubt but that the highest regard is to be paid to
all the proceedings of either of those houses; and that wherever the
contrary does not plainly and expressly appear, it shall be presumed
that they act within their jurisdiction, and agreeably to the usages of
Parliament, and the rules of law and justice." 3

And Lord Chief Baron Comyn, following the opinion of
Sir Edward Coke, affirms that

"All matters moved concerning the Peers and Commons in Parlia-
ment, ought to be determined according to the usage and customs of
Parliament, and not by the law of any inferior court."4

16 Howell, St. Tr. 1110.

22 Lord Raym. 1105; see also the opinions of Mr. Justice Blackstone and Lord Kenyon in the cases of

Brass Crosby and Rex v. Wright.

73.

32 Pleas of the Crown, c. 15, s.

4 Digest, "Parliament (G. 1).

VI.

Chapter

VI.

See also

Bradlaugh

v. Gosset,

P. 137.

In several other cases which related solely to commitments by either house of Parliament, very decided opinions have been expressed by the judges, in favour of privilege (see p. 67), and adverse to the jurisdiction of the courts of law: but most of these may be taken to apply more espe cially to the undoubted right of commitment for contempt, rather than to general matters of law in which privilege may be concerned.

These authorities are sufficient, for the present purpose, to show the general confirmation of the exclusive jurisdiction of Parliament, in matters of privilege: but even here the parliamentary claim is occasionally modified and limited, as in the opinions of Lord Clarendon, Lord Chief Justice Authorities in support North, and Lord Kenyon. In other cases, the jurisdiction of the jurisof courts of law has been more extensively urged, and the diction of privileges of Parliament proportionately limited. In Benyon matters of privilege. r. Evelyn, the Lord Chief Justice, Sir Orlando Bridgman, Sir O. Bridgman. came to the conclusion

"That resolutions or resolves of either house of Parliament, singly, in the absence of parties concerned, are not so concludent upon courts of law, but that we may, nay (with due respect, nevertheless, had to their resolves and resolutions), we must, give our judgment according as we upon our oath conceive the law to be, though our opinions fall out to be contrary to those resolutions or votes of either house." 1

On another occasion Lord Chief Justice Willes said—

"I declare for myself, that I will never be bound by any determination of the House of Commons, against bringing an action at common law for a false or double return; and a party may proceed in Westminster Hall, notwithstanding any order of the house." 2

courts in

Lord C. J.
Willes.

Lord Mansfield, in arguing for the exclusive right of the Lord MansCommons to decide upon elections, said—

"That, in his opinion, declarations of the law by either house of Parliament were always attended with bad effects: he had constantly opposed them whenever he had an opportunity; and, in his judicial capacity, thought himself bound never to pay the least regard to them:""but he made a wide distinction between general declarations

1 Benyon v. Evelyn, Bridgman, 324.

2 Wynne v. Middleton, 1 Wils. 128.

field.

VI.

of law, and the particular decision which might be made by either Chapter
house, in their judicial capacity, on a case coming regularly before
them, and properly the subject of their jurisdiction."

1

At another time the same great authority declared that "a resolution of the House of Commons, ordering a judgment to be given in a particular manner, would not be Lord Ellen- binding in the courts of Westminster Hall." And in borough. Burdett v. Abbot, Lord Ellenborough said, "The question. in all cases would be, whether the House of Commons were a court of competent jurisdiction, for the purpose of issuing a warrant to do the act." 2

Stockdale

v. Hansard.

Passing now to the most recent judicial opinions, the cases of Stockdale v. Hansard and Howard v. Gosset present themselves. An outline of all the proceedings in these cases (the most important that had arisen since that of Ashby and White), will be presently attempted: but, for the present, the expositions of the judges, in reference to the general jurisdiction of the courts, will be necessary to close this summary of authorities.

In giving judgment in the former case on the 31st May, 1839, Lord Denman used these words

"But having convinced myself that the mere order of the house will not justify an act otherwise illegal, and that the simple declaration that that order is made in exercise of a privilege, does not prove the privilege; it is no longer optional with me to decline or accept the office of deciding whether this privilege exist in law."

In the same trial Mr. Justice Littledale said

"It is said the House of Commons is the sole judge of its own privileges; and so I admit, as far as proceedings in the house, and some other things, are concerned: but I do not think it follows that they have a power to declare what their privileges are, so as to preclude inquiry whether what they declare are part of their privileges." "I think that the mere statement that the act complained of was done by the authority of the House of Commons, is not of itself, without more, sufficient to call at once for the judgment of the court for the defendant." "3

116 Hansard, Parl. Hist. 653; 24 ib. 517.

2 14 East, 128.

Proceedings as printed by the

House of Commons, 1839 (283), pp.
155. 159. 161; see also the con-
current opinions expressed by
Judges Patteson and Coleridge, in

« ÀÌÀü°è¼Ó »