ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Chapter
VI.

See also

v. Gosset.

In giving judgment upon the case of Bradlaugh v. Gosset, Bradlaugh Mr. Justice Stephen affirmed the principle that the House of Commons has the exclusive power of interpreting a statute, "so far as the regulation of its own proceedings within its own walls is concerned; and that even if that Attorneygeneral v. interpretation should be erroneous, this court has no power Bradlaugh, to interfere with it directly or indirectly." He moreover P. 167. stated that "a resolution of the house, permitting Mr. Bradlaugh to take his seat on making a statutory declaration, would certainly never have been interfered with by this court," and that "if we had been moved to declare it void, and to restrain Mr. Bradlaugh from taking his seat until he had taken the oath, we should undoubtedly have refused to do so." The judge, however, declared that " on the other hand, if the house had resolved ever so decidedly that Mr. Bradlaugh was entitled to make the statutory declaration instead of taking the oath, and had attempted by resolution or otherwise to protect him against an action for penalties, it would have been our duty to disregard such a resolution, and if an action for penalties were brought, to hear and determine it according to our own interpretation of the statute "1 (see also p. 145).

adverse to

With these conflicting opinions as to the limits of parlia- Judgments mentary privilege, and the jurisdiction of courts of law, if claims of privilege. 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

Stockdale v. Hansard, and Howard
v. Gosset, pp. 169. 174. 188; Argu-
ments and Judgment, as printed by
the House of Commons, 1845 (305),
p. 105.

1 12 Q. B. D. 280. See also the
judge's opinion upholding the juris-
diction of the courts over a criminal

act committed within the walls of
Parliament, ib. 283, the remarks
of Lord Ellenborough in Burdett v.
Abbott, East, 128, and argument
in the House of Lords (1668) in case
of Sir John Eliot and others, 1
Lives of the Norths, 66.

Case of Sir W. Williams.

VI.

if the court regards a question of privilege as any other Chapter
point of law, and assume to define the jurisdiction of the
house, in what manner, and at what point, can their ad-
verse 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 or
deny the right of 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. With these per-
plexities 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.

Having opened the principles of the controversy respect-
ing parliamentary jurisdiction, it is time to proceed with a
narrative of the most important cases in which the privileges
of Parliament have been called in question.

Sir William Williams, Speaker of the House of Commons, in the reigns of Charles II. and James II., had printed and published, by order of the house, a paper well known in the histories of that time as Dangerfield's Narrative. This paper contained reflections upon the Duke of York, afterwards James II., and an information for libel was filed against the Speaker, by the attorney-general, in 1684. He pleaded to the jurisdiction of the court, that as the paper had been signed by him, as Speaker, by order of the House of Commons, the Court of King's Bench had no jurisdiction over the matter. On demurrer, this plea was overruled, and a plea in bar was afterwards made, but withdrawn; his plea, that the order of the house was a justification, was set aside by the court, without argument, as "an idle and insignificant plea ;" and he was fined 10,000l. Two thousand pounds of

VI.

Chapter this fine were remitted by the king, but the rest he was obliged to pay. The Commons were indignant at this contempt of their authority, and declared the judgment to be an illegal judgment and against the freedom of Parliament. It was also included in the general condemnation by the Bill of Rights, of "prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament."1

ham.

The next important case is that of Jay r. Topham, in 1689. Jay v. TopAfter a dissolution of Parliament, an action was brought in the Court of King's Bench against John Topham, Esq., Serjeant-at-arms, for executing the orders of the house in arresting certain persons. Mr. Topham pleaded to the jurisdiction of the court the said orders: but his plea was overruled, and judgment given against him. The house declared this judgment to be a breach of privilege, and committed Sir F. Pemberton and Sir T. Jones, who had been the judges in the cause, to the custody of the Serjeant-at-arms.

They had protested, in their examination, that they had not questioned the legality of the orders of the house, but had overruled, on technical grounds, the plea to the jurisdiction. They averred also, that if there had been a plea in bar, the defendant would have been entitled to a judgment. Assuming the truth of their statements, it has been generally acknowledged that these proceedings against the judges were liable to great objection. Lord Ellenborough said, that it was surprising "how a judge should have been questioned, and committed to prison by the House of Commons, for having given a judgment which no other judge who ever sat in his place could have differed from." And Lord Denman, in Stockdale v. Hansard, said that this judgment was righteous, and that the judges "vindicated their conduct by unanswerable reasoning;" and again, in Howard v. Gosset, he called the commitment of these judges "a flagrant abuse of privilege:" but, on the other hand, Lord Campbell has pointed out that there had been a plea in bar, which had

[blocks in formation]
[merged small][ocr errors]

VI.

been overruled, as stated in the petition of Topham to the Chapter
House of Commons, and that the authority of that house
had, in fact, been questioned by the judges.1

The remarkable cases of Ashby and White, and the Ayles-
bury men, in 1704, are next worthy of a passing notice.
They have been already mentioned (p. 52), with reference
to the right of determining elections: but they must again
be cited, to point out the course adopted by the Commons
to stay actions derogatory to their privileges. Enraged by
a judgment of the House of Lords, which held that electors
had a right to bring actions against returning officers, touch-
ing their right of voting, the Commons declared that who-
ever shall presume to commence or to prosecute such an
action, was guilty of a breach of privilege. In spite of this
declaration, five burgesses of Aylesbury, commonly known
as "the Aylesbury men," commenced actions against the
constables of their borough, for not allowing their votes.
The House of Commons obtained copies of the declarations,
and resolved that the parties were "guilty of commencing
and prosecuting actions. . . in breach of the known privi-
leges of this house:" for which offence, the parties and
their attorney were committed to Newgate. Thence they
endeavoured to obtain their release by writs of habeas corpus,
but without success; and the counsel who had pleaded for
the prisoners, on the return of the writs, were committed to
the custody of the Serjeant-at-arms.2 The Lords took part
with the Aylesbury men against the Commons; and after a
tumultuous session, occupied with addresses, conferences,
and resolutions upon privilege, the queen prorogued the
Parliament.

At a later period a series of cases arose, in which the authority of the House of Commons, and the acts of its officers, were questioned. They have caused so much controversy, and have been so fully debated and canvassed, that nothing is needed but a succinct statement of the

110 C. J. 104. 227; 12 Howell, St. Tr. 829. 831; Stockdale 1". Hansard, Proceedings as printed by the House of Commons, 1839 (283),

76. 149; 2 Lives of the Ch. Justices,
57; 2 Nelson's Abridg. 1248.
214 C. J. 444. 445. 552.

Chapter proceedings, and a commentary upon the present position of parliamentary privilege and jurisdiction.

VI.

papers;

v. Hansard.

Messrs. Hansard, the printers of the House of Commons, Printed had printed, by order of that house, the reports of the in- Stockdale spectors of prisons, in one of which a book published by John Joseph Stockdale was described in a manner which he conceived to be libellous. He brought an action against Messrs. Hansard, during the recess in 1836, who pleaded the general issue, and proved the order of the house to print the report. This order, however, was held to be no defence to the action but Stockdale had a verdict against him upon a plea of justification, as the jury considered the description of the work in question to be accurate. On that occasion Lord Chief Justice Denman, who tried the cause, made a declaration adverse to the privileges of the house, which Messrs. Hansard had set up as part of their defence. In his direction to the jury, his lordship said "that the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports is no justification for them, or for any bookseller who publishes a parliamentary report containing a libel against any man." In consequence of these proceedings, a committee was appointed, in 1837, to ascertain the law and practice of Parliament in reference to the publication of papers, printed by order of the house. The result of these inquiries was the passing of resolutions by the house, declaring that the publication of parliamentary reports, votes, and proceedings was an essential incident to the constitutional functions of Parliament; that the house had sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; that to dispute those privileges by legal proceedings was a breach of privilege; and that for any court to assume to decide upon matters of privilege inconsistent with the determination of either house of Parliament was contrary to the law of Parliament.1

Stockdale, however, immediately commenced another action, and the house, instead of acting upon its resolutions, directed Messrs. Hansard to plead, and the attorney-general

1 92 C. J. 418.

« ÀÌÀü°è¼Ó »