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vice had been rewarded by a responsible office in the police force; and who, in that situation, had collected information, which he was compelled, by an order of the House, to lay before the Committee on the laws against gaming. It was added on the same authority, that the information was all true, and that the action was brought against him by one who justly suffered from it, being guilty of all the enormities imputed. After such a description of the cause and the actors, it might seem wonderful that the case was not at once disposed of by acclamation—by immediately punishing the breach of privilege already committed, and stopping all further proceedings. An instant decision was pressed for ; but the Lord Chancellor, the Lord Chief justice, and Lord Brougham, obtained a few hours of delay, that the decent ceremony of searching for precedents might be performed before a new precedent was added to them. The Committee reported those ‘most immediately applicable to the matter of the petition.” They did not cite the unrescinded resolutions of the Lords in 1675, and in 1704, cited above; nor that which followed Lord Lyttleton's speech in 1763. But the cases in point to which they directed attention, were in number four. One of them was in 1768. Biggs sued Hope for having, ‘in obedience to the orders and immediate commands of the House, taken him into custody’ for riotous behaviour, which obstruct. ed the approaches of the House. 2. Hyde, a magistrate, in 1788 caused Aldern, a constable, to be indicted for an assault in obeying the orders of the House, in refusing Hyde admission to Warren Hastings' trial, without a ticket. Defendant had been honorably acquitted, but Hyde was committed for his contempt in preferring such an indictment. 3. Wharton, in 1826, was summoned for writing a letter tending to a challenge to Fonblanque, in consequence of words spoken by the latter in arguing a question as counsel at the bar of the House; he apologized and was discharged. 4. The noted umbrella case stood last. It appears to have been thus: Frederick Plass, one of the doorkeepers of the House, complained to their Lordships that John Bell had served him, when attending his duty in this IHouse, with two processes from the Westminster Court of Requests; and Bell informed Plass ‘that the first process was issued to recover the value of an umbrella left by Mr. Bell with this Plass on the night
of the Friday preceding; that Bell gave him the umbrella, and he put it away in the usual place ; that on Friday the 23d Bell served Plass, when on duty in this House, with an order from the Court to pay Bell 17s. 6d. debt, and of 2, 10s. costs, for the use of Bell.” These cases could not be supposed to furnish an example of staying legal proceedings commenced by one slandered by false evidence before a committee. But they must have been thought to rest on a principle which would justify a vote for so doing; and as their Lordships immediately came to such a vote, we must presume that such a principle was extracted from them. By what process, we own ourselvas incapable of discovering. The last case, that of the umbrella, which was the most relied on, is evidently a punishment for serving the process of the Court of Requests on one of the officers of the House, while there attending its service. Most clearly, on perusing it, no other offence is charged. The production of these documents, and of several others so much less like the case in hand, that the committee did not regard them, gave but a short respite to the plaintiff and his attorney, who were summoned, and released on their assurance that they had intended and were conscious of no of. fence; but that having been so unhappy as to incur the displeasure of that august assembly, they would discontinue the action. On the motion for requiring this of them, the Speech and Protest of Lord Brougham were made. They will be the text on which all future commentaries on the use and abuse of privilege must be written— the treasury from which all arguments must be drawn. They are too generally read to be here copied or abstracted; but some observations on points of detail may not be wholly superfluous: Adverting to the noble Duke's description of the transaction, and the parties to it, Lord Brougham remarks, that these might have exhibited the reverse of that description in every respect. Consider
now for a moment how the question would have stood, if that had been the case. Suppose the petitioner to have been the keeper of a low gaming-house, who before a committee for inquiry into the state of the police, had volunteered his evidence against an inspector, promoted to that station for bravery and good conduct in the victorious army, but exposed to malice for the faithful discharge of his duty; and suppose all his evidence to have been a base fabrication to injure this honest man. All this might have been the fact, but of course no word of it would have transpired in the petition. The truth would be made apparent at the trial ; but, according to the practice now established, that can never take place. In this debate, it appears to have been assumed, even by so candid and calm a judge as the Duke of Wellington, that the mere relation of a witness was enough to entitle the petitioner to the protection of the house against an action. But with all
the deference and respect which is due to
that great name, we must submit that the truth of the evidence is a much more important matter. The plaintiff undertakes to prove its untruth. We ask, with all humility, what right can there be to act as if you knew it to be true, and at the same time deny all means of discovering whether it be true or false ? The same answer is good to the argument urged by the learned occupant of the Great Seal, and some of his highly revered predecessors. ‘We protect from actions at law, the officers of our Court who execute its process.’ This may possibly be very proper where you are perfectly sure that your officer has done so, and nothing more; but this is not an officer—he is a witness—the plaintiff says, a false witness. You cannot know which is right without that trial, which one of the parties seeks, and the other is anxious to prevent. If perjury has been committed, the son of Belial is certainly no officer of the Court, or of the House, in committing it. On other grounds, the Protest clearly demonstrates that no analogy exists between this case and the protection of officers, or parties in the Court of Chancery. But the intervention of the House is also justified on that most suspicious ground, the interest of the plaintiff himself, who must fail (it is said) because no action can be maintained for perjury. If so, the defendant, the petitioner, is safe at all events, however steeped in falsehood. But we
cannot adopt this general proposition of law till it shall be promulgated by judicial authority; which it never can be as long as an action for a malicious prosecution, or for an unlawful arrest, procured by a false oath, is held to be maintainable. Let us also observe, that this ingenious reason is wholly inapplicable to evidence laid before the House of Commons, by which no oath can be administered. A party thus slandered and seeking redress, is exactly in the situation in which James Duke of York would have stood, if he had sued Dangerfield for calumniating him, and not the Speaker, Sir W. Williams, for printing and publishing the calumny. But suppose that a person should present himself before a committee of the House of Lords, and falsely swear that A is the holder of so many railway shares, or that he has given his assent to some sacrifice of his property; by reason of which false representation, A is made liable by the Act to certain payments, or loses his land without compensation. If A should bring an action against the witness, by whose falsehood his interests are so much affected, the Court would stare at such defence as this— “Very true, I have stated a falsehood respecting you, and you have suffered enormous damage from my false evidence; but that false evidence was given upon oath, and you have, therefore, no remedy against me.’ If, indeed, the witness has spoken nothing but the truth, or even if he has communicated nothing but what he really believes to be true, it is hard that he should be harassed by an action, and put to the expense of defending himself against vexatious litigation. We freely admit that no unfounded action ought to be commenced; but we as strenuously deny that it can be politic to lodge in the hands of either House of Parliament the discretionary power to prevent this evil on er parte applications. The delays and expenses of the law are among the heaviest evils that afflict men in society. Legislators cannot be too active in devising the means of reducing them and of discouraging all the arts of legi chicanery. The Courts themselves are astute in the application of remedies, and they ask for the means of carrying them still further; but allowing the mischief to exist to a grievous extent, it were a much greater evil to close the Temple of justice indiscriminately—excluding by the same act both well-founded demands and extor
tionate attempts, by prematurely crushing some prese by nature, and others have
the only means of ascertaining their true ulation.
- - - - l A criminal proceeding for perjury, an
information or indictment, is no less harassing than a civil suit, and its consequences may be much severer. Privilege has not yet interposed to prevent it; for which a reason was assigned in a late debate in the Lords, that in criminal proceedings the Crown is a party. To this argument, as to many employed upholding indefinite privilege, a twofold refutation may be directed. 1. It is not virtually true; for all the world knows that the Crown is very rarely the real prosecutor in such cases. Though the process must issue in the name of the Crown, the real prosecutor is he whose character or whose interest has been injured by the false witness, and who deems the necessity of a public exposure a paramount duty, to be performed in spite of all the cost, risk, and anxiety, which belong to such proceedings. But, 2. Is the reason a good one Is the distinction just 2 Is it in the genuine spirit of that Privilege, so potent for the destruction of private rights, to be suddenly paralyzed by a conflict with the Crown 2 If the object of such prohibitory resolutions be thus questionable, the means of enforcing them will hardly appear more praiseworthy. A party is imprisoned and fined by payment of fees, that others may be deterred from asserting a just claim for redress; in perfect ignorance that he has violated any privilege. His attorney is sent to jail for exercising his profession for the advancement of justice. If he knew that this might be styled a breach of Privilege, he could not know that the House would think proper to take it up as an offence. Counsel have hitherto been spared. The times in which we live have hitherto been relieved from witnessing such scenes as the House, from a sense of dignity, acted in the reign of Queen Anne, when the Sergeant-at-arms was playing at hide-and-seek with eminent Barristers in the Temple cloisters; and had to inform the House that he had well-nigh caught one, who escaped at the hazard of his neck, by the help of his sheets, from a back window up two pair of stairs. Even these harsh measures may fail to extirpate the heresy, and put down contumacy. Late experience may teach this to the most careless observer; for the disinterested love of martyrdom is implanted in
courted it successfully as a profitable specIt is perfectly notorious, that a skilful watching of the Table of Terms and Returns may enable the practitioner to commence and conclude his action, so that the damages and costs may be levied and paid before it is possible for Parliament to intersere. On their re-assembling, their first step might probably be to visit with their high displeasure all who had been concerned in the discussion or decision; not only parties, counsel, attorneys, sheriffs —and why not witnesses and jurors also : —but certainly, in the terms of the resolution adopted by the last Parliament but one, the judges of those courts and tribunals which may have decided ‘any matter of privilege inconsistent with the determination of the House.’ But the object of the plaintiff and his attorney would be in the mean time fully attained. To meet this danger but one expedient can be devised. An address might be presented to the Crown, just before the usual, time of prorogation—praying that Parliament might not be prorogued, but that the two Houses might adjourn. The Crown again! What if the Crown refused ? What if the Lords dissented 2 A remark of a more general nature must here be introduced. In case of any difficulty in the execution of any warrant issued by the House, who must supply the force requisite for that purpose 1 The Crown. These inconvenient consequences are hinted at with reluctance, and not without pain; because they might occur where Privilege was not obstructing the law, or squabbling with its officers, but manfully engaged in a noble and legitimate contest, in the discharge of its highest duties, and in defence of the real liberties of the people. But they may supply forcible reasons for acting with caution in a matter of so much delicacy, and against overstraining powers, in their own nature hard to be wielded. And it is indisputably true, that every exercise of privilege which wants the sanction of public opinion, and is condemned by considerate men, must weaken its authority on other occasions, when all such would wish to see it active and triumphant. We have just touched upon the most striking, perhaps also the most really important, part of this great subject—the relation which it bears to, and the influence which it must have upon, the administration of the - a law in our Courts of Justice. And here, in the first place, we would state our strong sense of the unfortunate position which this question has assumed. The disagreement that has arisen is in itself a great calamity. It is a lamentable thing if a Court of Justice has denied the existence of a real Privilege of Parliament: or if the House of Commons has asserted as a right that which the Courts can justly refuse to recognize. But if the reports obtained through the ordinary breach of privilege may be trusted, strange misconceptions appear to have been engendered in the heat of controversy, and to have taken possession of some superior understandings. The controversy has been regarded by many as a struggle for political power. A foreigner might have imagined that two great rival bodies in the state were contending for the same authority, and aiming to secure thereby a preponderance in the machine of government—as if the House had, in direct terms, insisted on the right of inspecting and reviewing all the judgments of all the Courts; or the Queen's Bench had affected to impeach ministers, or grant supplies, or decide on a disputed right to sit and vote in Parliament. An opinion was growing that the Court was obstinate and presumptuous; and that as the weaker body it ought, by reason of its comparative weakness, to have abstained from disturbing the public tranquillity, by yielding up with a good grace the point in dispute. A very little reflection must explode this fallacy. The House of Commons, like every other privileged body, may exercise its judgment on the propriety of acting at any particular crisis. Both Houses wilfully connive at a daily invasion of an undoubted privilege committed by every newspaper in publishing their debates. They may also imprison for a libel, or forbear to imprison, as, on a view of all the circumstances, they may think fit. Under the recent Act, if a bookseller were sued for something contained in a Blue Book, the House would have to consider whether they ought to direct the Speaker to send his certificate o a Court of Law. So, if it had been made clear to the House, that the plaintiff Stockdale had really suffered in his character or fortune by a publication culpably negligent; or that the plaintiff Howard had been needlessly annoyed by the Sergeant-at-arms in the execution of his warrant; the House might have declined to interfere in behalf of either defendant.
Cases may well be conceived, in which they would address the Crown to make compensation to the injured man; others, in which there would be no injustice in leaving their officer to abide the consequences of his own misconduct.
But the Court is in no sense a party. The parties in the late proceedings were those whose names appeared on the record as plaintiffs and defendants in the respective actions. The House of Commons elected to become a party, by a process not unlike that of interpleader, taking up the defence of its agent and officer. The Court put forward no claim whatever. Being set in motion by the ordinary means, it attempted to do no more, and it could do no less, than exercise the jurisdiction entrusted to it by the law and the constitution. It could not prevent the plaintiff from suing out his writ of summons, or filing his declaration, or demurring to the defendant's plea, or demanding judgment. The Court can never be a party. Individual judges might be made parties against their will, if they incurred the high displeasure denounced, by being involved in the penal consequences flowing from it; as we commonly style the convict a party to that process which may terminate in his imprisonment, exile, or death.
In the case where judgment was suffered for want of a plea, the Court was merely passive—an instrument in the plaintiff's hands for obtaining the damages awarded by a jury, as ignorant of what was passing in its name as the steam is of the progress of the train. So when the defendant pleaded the privilege of the House of Commons as his justification, and the plaintiff by his demurrer questioned its sufficiency, the duty imposed on the Court was different, but was in the same degree clear, restricted, and inevitable. Their duty was to hear what could be urged by Counsel on both sides, and determine according to law—that is, to the law as it existed in their own opinion, and not another's. Each party had a right to require them to form this judgment, and to declare it. Some distrust of their own first impressions may have been inspired by the opposite views proclaimed in an assembly so enlightened; but they could no more deprive the plaintiff of that benefit—which, after full consideration they were convinced the law conferred upon him—than the Prophet of the Lord could utter any other words than those which his great Master commanded.
A distinguished member of the the legal profession from our own part of the island, is reported to have expressed, in the House of Commons, an opinion, that a Scottish court, if placed in the position of the Queen's Bench, would have given way. We hope that he did not profess that sentiment, and believe that it is unfounded. It would exhibit a distinction between the Courts sitting in London and Edinburgh not very honorable to the latter. At least we are certain that so learned and honorable a person, if, when holding a judicial seat, he shall be tried in so severe an emergency, will find that he cannot act upon his own doctrine. Should he in the seat of justice be threatened with the displeasure of the Crown or of the Parliament, in the event of his coming to a particular decision, he will answer, “It is not necessary for me to please either Crown or Parliament, but it is necessary for me to do my duty. I can listen to no expression of voluntas pro ratione. It is for the purpose of controlling that will of another, that my reason is called upon to decide.' The important principle requires to be frequently asserted—more especially in these days of compromise—that judicial duties are not vicarious, and cannot be delegated. Parties may waive their rights, rather than suffer an inconvenience at their own mere option; with Counsel and Attorneys the question of casuistry may strike different minds in different points of view; but the Judge cannot run away from his duty, or leave it to other hands.
A perusal of this now voluminous controversy, shows that the Judges thought it had reached a point in which only one decision was possible; as soon as the doctrine by which alone the defendant could succeed, appeared to be at open variance with first principles. When they found his justification to rest not on the long enjoyment, the expediency or necessity of the privilege, but on the fact that the House declared it to be a privilege, they thought their own task ended; and anticipated the concurrence of all who knew that we live under a system of laws, and are subjects of a mixed government. ‘For here,' (as more than one of them distinctly intimates,) “we find a direct claim of arbitrary power for one branch of the legislature, which implies the entire subversion of all law.” This looked like a reductio ad absurdum—a bar to all further argument; the proposition was stranded, nor could law or common sense float it over such a shoal.
Among the dicta of Judges, cited on the argument, was one in the time of the usurpation, when the Upper Bench refused to discharge Captain Streater on his habeas corpus; simply because he had been committed by order of the Parliament. “Some one must be master,’ said the Chief-Justice. And no doubt, in every state an ultimate arbitrary power without appeal must, under all governments, somewhere exist. The question is, where? The answer of all dispassionate inquirers can be but one—in the three Parliamentary Estates of the realm —in Queen, Lords and Commons. It is grasped by one in the name of Privilege, as it had formerly been by another in that of prerogative. The constitution has lodged the sacred deposit of sovereign authority in a chest locked by three different keys, confided to the custody of three different trustees. One of them is now at length, after ages of struggle, effectually prevented from acting alone; but another of the two is said to enjoy the privilege of striking off the other two locks, when, for any purpose of its own, it wishes to lay hands on the treasure. The argumentum ad hominem was clothed in various disguises. “You yourselves, ye judges of Westminster Hall, enjoy the arbitrary power that you would condemn. Your decrees are final, the execution of them is without appeal; and, furthermore, they are frequently wrong, for they are reversed on error.’ An arbitrary power in the judges' bound as they are by statutes and rules, by authorities, precedents, and forms; their judgments reversityle by two successive courts of error; their members subject to impeachment for malversation and oppression; and to removal for ignorance or incompetency, for partiality or intemperance, or indiscretion, or any ill quality that can impair the usefulness or efficiency of a magistrate But then, it is said, the course of study which lawyers must pursue, disqualifies them from comprehending these high matters. Their habits cripple the mind and weaken the perception. Privilege is understood by few ; its mysteries can only be fathomed by a reach of thought, not to be expected from professional men. “It is too wonderful and excellent for you—you cannot attain unto it.' The faculty is confined to the members of either House, and need not be sought for, as it cannot be found, beyond their walls. We have heard such remarks gravely