The Sun.
London, England, 1837-10-26 00:00:00

PARLIAMEN TA RY PRIV ILLGE.

TO TrIV EmpJA ‘,§i*
reveWors 'ente?e'd by the Hoase of
Commons on 34th MAS, I.Li, and that feeling of dissatis-
faction evinced by the House of Lords, induced
Lord Denman to abandon his. to.ctf.'z'A 'relative to those
resolutions, having estebitliod beyond all reasonable con-
troversy that the k.,hief Justice, in his charge to the Jury
in the case of Stockdalc v. Hansard, had stated that to be
law which was not law, it only remains to be seeo whether
such mis-statement was an error in judge-I'OA, titi• a wilful in-
fringement of the Bill of Rights and the Constitution.
Lord Denman is sworn to administer the law. By this
it is to be understood, either, that he is sworn to admi-
nister every branch of the Lc.r Terrce, or some particular
branches peculiar to the Court over which Ito presides.
Now, as Lord Denman is not sworn to administer the
Ecclesiastical Law, the Maritime Law, nor the law which
governs the Courts of Equity, it is manifest that the first
proposition cannot he the interpretation of his oath. He
is then sworn to administer the Laws which obtain in the
Court of Queen's Bench—namely, the Common and the
Statute Laws. And this he is bound to do, unless estoppel
by a competent or superior authority.
Courts of Record in this country are divided into the
Inferior, the Superior, and the Supreme. The Courts of
Westminster Hall are the Snperior Courts of Record. The
High Court of Parliament is the Supreme Court of
Record ; and as the Exchequer is divided into the Pleas I
side and the Equity side, so the High Court of Parlia-
ment has its Houses of Lards and Commons, which admi-
nister the Law of Parliament pursuant to their respective
jurisdictions. The acts of either House, in the exercise of
their functions, carry with them the sanction and authority
of the whole Parliament. For, until the legality of the
acts of one branch of the High Court of Parliament is
disputed by the other branch, such acts must he presumed
to be done pursuant to the Law of Parliament. The
Supreme Courts of Record---constituted as they ere—can-
not be subject to the interference or control of the Courts
of but comparative superiority, who administer other and
inferior Laws. In Ferrer's case, 33 Hen.VIII., the KING
said
" And further more we be informed by our Judges, that we
at no time stand so highly in our estate royal as in the time of
Parliament, wherein we as head, and you as members, are con-
joined and knit together into one body politic, so as whatsoever
offence or injury is offered to the meanest member of the
House is to be judged as done against our person and the whole
Court of Parliament, which prerogative of the Court is so
great, (as our learned counsel informeth us) as all acts and
processes coming out of any other inferior courts must for the
time cease, and give place to the highest."
The same principle is recognised by Holinshed, when
speaking of the mode of staying proceedings in the Courts
of Westminster Hall, by the House of Commons:—
" Then forthwith," he says, "a Sergeant-at-Arms is sent
to the said Court, not only advertising that the party so mo-
lested is one of the Parliament House, but also inhibiting
and commanding the officers of the said Court to call in the
said process, and not to deal any further against the said party ;
for the Parliament being the highest Court, all other Courts as
inferior yield and give place to the same." " The laws," says
Chief Justice De Grey, " can never be a prohibition to the
Houses of Parliament, because, by law, there is nothing supe-
rior to them."
As the Judges are bound to follow the course of prece-
dents in the interpretation of the law, unless some manifest
injustice takes the case out of the rule, we will proceed at
once to the legal authorities, which are presumed to have
governed the decision of Lord Denman in the case of
Stockdale v. Hansard.
The Earl of Shaftesbury was committed to the Tower by
the House of Lords for a contempt, generally—the parti-
cular offence was not stated. He was brought up by
Habeas Corpus before the King's Bench.
JONES, Justice, said—" Such a return made by an ordinary
Court of Justice, would have been ill and uncertain; but the
case is different when it comes from this High Court. The
cases where the Courts of Westminster Hall have taken cog-
nizance of Privilege, differ from this case; for in those it was
only an incident to a case before them, which was of their cog-
nizance; but the direct point of the matter now is the Judg-
ment of the Lords. It is said (4 hist.) that the Judges are
assistants to the Lords, to inform them of the Common Law ;
but they ought not to judge of any law, custom, or usage of
Parliament. This Court can neither bail nor discharge the
Earl."

WI,Li); Justice--" The return no doubt is illegal, but the
question is on the point of jurisdiction, whether it may be ex-
amined here ? The certainty or uncertainty of the return is
not material, for it is not examinable here."
RAINSFORD, Chief Justice—" This Court bath no jurisdic-
tion of the cause, and therefore the form of the return is not
considerable; we ought not to extend our jurisdiction beyond
its due limits, and the actions of our predecessors will not war-
rant us in such attempts. This Court hath no jurisdiction of
the matter, and therefore he ought to be remanded."
TWISDEN, Justice, was absent, but he desired Justice
JONES to declare, that his opinion was, that the party
ought to be remanded.
In JAY V. TOPHAM, the defendant pleaded an order of
the House of Commons, and concluded to the jurisdiction
of the King's Bench to examine the matter further. The
plea to the jurisdiction was overruled. Chief Justice
Pemberton and Mr. Justice Jones were brought to the bar
of the House. On that occasion the Chief Justice said :
" The jurisdiction of this House I do not take to be in
question ; nor the validity of their orders. I think there is no
Judge that understands himself but will allow the privileges
of this Houso : they are the privileges of the nation, and we
arc bound to maintain them as much as any Member of the
House. . . It is allowed by all people living. I think no
Judge ever denied it, that the order of this House was suffi-
cient to take any one into custody. No Judge, I presume,
ever thought otherwise. . . . If Mr. Topham comes and
pleads this by way of bar, no Court will deny but it is a good
,Justification. . . . Finding no footsteps of law, nor any-
thing of this Honourable 'toast that could direct us, I did con-
sider then what was reasonable and fitting to be done. I knew
we had a jurisdiction in the case of such an action as this is,
and I found the objection against it was only one—that this
House was a superior Court, of a higher nature titan the
King's Bench, and of a greater authority ; and that the King's
Bench bud nothing to do to inspect the actions of this House,
or f.o examine what was done by virtue of any order of this
House. . . . But I thought that the high authority and
high nature of this Court could not exempt the King's Bench,
being a Court of Law, to examine whether what was alleged to
be done was done in pursuance of your authority or not. . .
We did not question the legality of your orders, nor the power
of them ; but the great business was, whether he had pursued
this order of the House of Commons, and that was the thing
properly examinable. . . These being my apprehensions,
as a Judge of the Court I did think that I was bound to over-
rule the plea to the jurisdiction of the Court. If I was mis-
taken in this case, it was an error of my judgment. I had no
mind or design to meddle with the affairs of the House, nor to
pry into what was done here."

Sir THOMAS JONES said—" I do Confess I did think there
was a difference to be taken in matters that were merely trans-
acted by this House, and may be complicated of the authority
and commands of this House, and of the execution qf tlw au-
thority and commands of this House abroad t and that was the
Case that was before us in the King's Bench. . . There-
upon I think Mr. Topham was advised and told that he ought
to plead this matter in bar, wherein there would be full con-
sideration, and perfect regard given to the authority and com-
mands of this House, and all imaginable reverence if he had
produced a copy at most of your Journal, that had been suffi-
cient, and no Judge would have been so silly, or imprudent,
to have said that had not been a good and sufficient autho-
rity 'lnd upon these reasons, Sir, I did give my
opinion at that time, that the plea to the jurisdiction of the
Court should be over-ruled ; which, if not agreeable to your
judgment, I must humbly beg your pardon for it."
In the Habeas Corpus case of Regina v. Patty et alios,—
GOULD, Justice, said---" The prisoners ought to be re-
manded. This was the first Habeas Corpus that was ever
brought by persons committed by the House of Commons that
he ever heard or read of ; and therefore no such writ having
ever been brought before, that is an argument that no such
writ lies. He said, if this had been a return of a commitment
by an inferior Court, it had been nought, because it did not
set out a sufficient cause of commitment : but this return
being of a commitment by the House of Commons, which is
superior to this Court, it is not reversible for form. We can-
not judge qf the privileges of the House of Commons, but they
are to debate them among themselves. . • • He said, the
Parliament had laws peculiar to itself, and that this was de-
clared to be secundumlegem Parliamenti ; and that the Judges
ought not to give any answer to questions proposed to them
about matters of privilege, because the privileges of Parliament
are not to be determined by the common laws. . . Accord-
ing to Lord Shaftesbury's case, if the return had been general,
without expressing what the particular matter of contempt
was, it had been good ; and though here the special matter
was expressed, that would not alter the ease, because this
Court had nothing to do with it, nor could gainsay the House
qf Commons that the House of Commons were to be en-
trusted with the liberty of the people, and that nobody could
suppose that they would make any invasions upon it. He con-
cluded that no Habeas Corpus would lie."
Posses, Justice—" I am of the same opinion. . . .
The sixth objection to the return was, that the cause of
commitment is for bringing an action at common law ; and
shall the Commons hinder a man from proceeding at law ?
Now, in general speaking, that is the only use of privilege ;
and the meaning qfprivileqe is, that it is a privilege against the
course of law. . . . The House of Commons is a great
Court, and all things done by them are intended to be rite
acta, and the nuttier need not be so specially recited in their
warrants. . . The Law of Parliament is as much a law as
any; nay, if there be a superiority, this is a superior law.
. . . . We must take it, that what the House of Com-
mons have done is warranted by their jurisdiction, and is well
done. He expected some precedents would have bean brought
to show that the King's Bench might inquire into the proceed-
ings of the House of Commons, and discharge persons com-
mitted by them ; but that the counsel for the prisoners had
not brought one precedent, nor one bookcase, nor one opinion
in point, to Warrant any such power in this Court. But he
said the reason why there were no precedents of that kind was
very obvious, viz., that it would be unreasonable to put the
judges upon determining the privileges of the 'louse of cons-
MOMS, of which privileges they have no account nor any foot-
steps in their books; that the House of Commons have the