The Sun.
London, England, 1840-02-04 00:00:00

greater. Aithrubh he, opinions might not be entitled tc. 1 jurisdicticn, their character was 'lmproved but their
much weight or ridiaece, he could assure the House that ! jurisdiction was the St.72lC ; they had no more power
they were the result of as much labour, research, and eon- 1 with respect to Parliament now, than they bad in the worst
sideration, as he could bestow upon them.—( Hear, hear.) .of times, when the Judges of the land were the most ser-
if.., felt that that House had never been called upon to ; vile beings in the kingdom. What privilege of that
consider any question of more vial importance then the j House had not been denied by the Judges in former times?
present. The Hon. and Learned Gentleman who brought ! Five Membern of that House had been held to be
forward the motion had taken credit to hirnstelf ; guilty of treason for what they had said, but that decision
for omitting altogether the question of privilege; but bin
bad been overruled by that Home. When Parliament was
Hon. Friend beimid iiirn had justly remarked that that was constituted it; was invested designedly with the power
an omission of all the importance belonging to the ques- each of resisting the other branch, and if that were so, was
tion.—(Hear, hear.) The House he was sure hnd no re- it, he would ask, consistent that one branch should become
sentiment against the Sheriffs ; no Member could feel other tenaet-at-will
I
titan of its privileges to the other branch ? But
an regret at the necessity of the case which imposed a t it was framed to resist prerogrative.—( Hear, hear, hear.)
restraint upon them ; and when his Hon. and Learned i Where did the King found his claim for ship-
Friend,
the Attorney-General, stile' that they had not money ? Not in Parliament, but in the Courts
suffered much, in alluding to their levees and visitors, he of Law. Each branch of the Le itilature was independent
was satisfied that he did not mean, in a British House of I of the ether, and how could it begconsistent therefore that
Commons, to undervalue the loss of liberty, whether I one branch was to decide on the privileges of the other?
for I —(Hear, hear.) Would Parliament be Worthy the name
for a day, or for any longer perio 1, fur ii tympathy
such an infliction was leg 'felt in it Brenta Flame of Corn- if its power and privileges were dependent 111011 Judges
mons where was it to be met with ?_( Hear.) what was appointed one day and-remved the next ?—(llear, hear.)
the position of the House at the present moment? It had The Howes of Parliament were a check upon the Courts
resolved that the privilege of publishing printed papers was of Jastice, and they were to be the prosccuters of those
essential to the due perforrnaece of its functions—that the who imProPerlY administered it. In times gone by the
House was the exclusive judge of its privileges, aid that Judges were in the habit of referring cases to Par-
any action or proceeding to bring those privileges under bainent, because they were too difficult
far then:.
the deliberation of the Courts of Law
was a contempt.
artoactecrouorftstlieof DouseJtstieei,tszedi f, o con 11
eloriookdin
He, therefore, asserted, that looking et • the Censti-
Was the House sincere in that opinion ?—( Hear.) If so i titustiornealaliioculis
did that or did it not form a question in considering
whether or not the Sheriffs should be discharged? the Courts of Justice in a situation to exercise
aritdiction over Parliament. Every prege which the
They had been taunted with the observation that the .i locking at
powers of the House were insufficient, and that if they tried House bad, Lad been given to it, not for the benefit of any
to assert them, they would only bring themselves into of its Members, but the public good. The privilege of
contempt, and he admitted that if they had followed the freedom from arrest, which was
.given to its Members, was
advice given by some Hon. and Learned Members on the for the benefit of the public, in order that no Member
other side, such would not have been the case.—(Hear, might be prevented attending to his duties to the public,
hear.) The privileges of the House, bad they been vie- and yet, if the Queen's Bench were to proceed in the
dicated ? Why, the persons under their restraint were course they were adopting, every privilege of that House
defying them. If the Sheriffs had been at any time in must come under their cognizance. There could be no
the opinion of the House contumacious, what were they doubt that the House had committed abuses in the way of
now ? Were they not pertinacious in defying the Holism, privilege more or less, but floes whom had the public
and would discharging them vindicate their privileges? •rcceived redress? Not from the Courts of Lew, hut from
He begged to say that he was not indifferent to the pain the Hous.e itself. In these times did thny have recourse
of imprisonment, but feeling that the question was one to the Court of Queen's Bench ? Certainly not. When
deeply affecting the best interests of the country, he was Sir Francis Pemberton and others nere committed ftr
for detaining them in custody until the privileges of the a contempt did they appeal to the Courts? No, but to
Haute bad been vindicated.—( Cheers.) He was not a the House itself ; and it would invariably Ire found, that
cruel person, nor did he wish to see these gentlemen when the Howe had stretched its privileges- too far,
confined longer than was absoluely necessary; but tic the public would find safety not from the Courts, but
question really was, whether they were to have an inde- from the !douse ittelf.—(,sear, hear.) The • lending
pendent House of Commons or not. He did not consider cars upon which the Court of. Queen's Bench
himself fit to represent the interests of the country decided it judgment was the case of I.3tnycn and
in that House, if he did not stand up and defend Evelyn which had been mentioned in that House.
their privileges, so far as lay in his power. They were It was a case is which a point regarding the • privileges of
told that their power was little. What then ? Were they that nfouse had been decided extra-judicially by Sir Orlando
to give up that little ?—( Cheers.) They were told that Bridm.man, a Jodgc who had :lives detested the fltuac,
they could not vindicate their privileges. Why should and was a great partizan of Charles the First ; he had gone
they give up the means they possessed of making the at- out of iris way to express an opinion regardirg the privilege
tempt?—(Hear, and cheers.) As the question at present of thet House, and he had riven it as his opinion that Mem-
stood, they had affirmed a resolution that these privileges hers were not free from suits during' the sitting of Parlia-
were essential, and yet they were called upon, while the ment. Non; this was a privilege which the HOUTC had ex-
Sheriffs continued contumacious, to discharge them. That ercised unchallenged up to the lime of giving that opinion,
was a course he certainly could not take. While these rose- —had exercised an frequently since that opinion had been
lutions existed, that House could notovithout incurring the given,—which had been asserted by the other House of
contempt wish which it is threatened, discharge these gen- Parliament, and which was at last given up by the Haute
demon from custody. lie recollected when the judg- itself by Act of Parliament. It had been limited by an Act
merit of the Court of Queen's Bench was under discus- in the time of William the Third ; it had been still further
sion, that some Hon. and Learned Members complained restrained by an Act of George the Second, and in the
that the House had not shown sufficient respect to the time of George the Third the House hail voluntarily given
Courts of Law. He recollected no instance of that disre- up the privilege, abolishing it by Act of Parliament,
spect, but he certainly wished there had been something and this was the judgment quoted as the foundation of
like reciprocal respect.—( Hear.) He had the highest re- the judgment recently come to in the Court of Queen's
spect for that Court, and he believed that respect was Bench. The question to decide was this. Was the House
felt by every Member of the House ; but he regretted of opinion that it was a part of the British Constitution, to .
that on all occasions that Court had not considered what have an independent House of Commons ? Was the
was due to the House of Commons, because most disre- House of Commons charged with the duty of watching
apectful comments had been made the basis of arguments, and resisting any attempts at encroachment on the part of
in that Court, and insinuations had been thrown out even the other branches of the Legislature? If so, was it
against the form of the commitment. He aereed with his consistent that
me ry privilege they had, should be subject
Hon. and Learned Friend that the laws and the cor.sti- to the revision of aJi ffries or a Keeling. All the present
tuted authorities of the country should be respected ; but Judges were, be knew, most honouteble men, but the
he would remind his. Hon. and Learned Friend that that House should not look at them, it should look et the times
Hoes° was one of the constituted authorities.—(Cheers.) which it had pesled through, and which it had been
If the House was disposed to take exception at trifling enabled to pass through sucetsfully, Imeauae it had stood
matters, (and he hoped it never would stoop to do so,) by its privileges, without the possession of which, it was
there was ground enough in snatch of the proceedings be- impassible for the House to exercise its constitutional
fore the Court cf Queen's Bench. Nay, even the vary functions. He would read to the House a few names of
line of argument permitted and sanctioned by the Court high legal authorities, who admitted that the House was
was such as had not been permitted within the memory the sole judge of its own privileges. There were the
of his Honourable and Learned Friend himself. twelve Judges in Thorpe's case ; there waa Coke, Pem-
The House was engaged in a matter of too much import- Berton, Jones, Denison, Wright, Foster, De Ore}, For-
ance to attend to any little attempts at insult like that.— tescue, Mansfield, Tenterden, Best, Holroyd, and a host of
(Hear, hear.) It would be unworthy of it to do so, but he others, who had all admitted that in cases of privilege the
hoped at the present time they would feel the necessity of Courts had no jurisdiction. Had the House learned nothing
being treated with a proper degree of respect, to which by the judgment which had been recently pronounced? and
they were entitled, and of which they could not be deprived, contrasting it with the former judgment, if they were
He had been, lie confessed, somewhat surprised at the line exposed to the decision of the Courts in one of their
of argument adopted by his Hon. Friend. He hoped when privileges they were exposed to it in all. Suppose a
the Committee which had been reappointed came to con- case, in which the House was called on to suspend the
sider and make a report on the judgment of tho Court Habeas Corpus Act, or to do any other' legislative act
of Queen's Bench, that they would do so in a spirit suddenly, they summoned a witness before them ;
I'eof independence worthy of the character of that House. refused to attend, or attending, refused to open his
mouth;
No judgment ever given was less in accordance with the the House ordered him to be arrested ; he aPPesi.s to the
spirit of authorities covering- a long course of ages in this Court of Queen's Bench; that Court decide), whether the
country, nor was there ever a judgment more unwarranted arrest. is a legal one or no. They het,: the power of
in conclusion. He begged to call the attention of his arresting your progress in every
Hon. and Learned Friend to what was the constitutional Every function will be impeded vta•
td—mou cannot go on.
Pad vou mill be driven to
part of the question. - Hi; Hon. and Learned Friend said, the House of Lords, or batwithout a remedy. If the
You must submit your privileges to the Court of King's Commons owed it to the nteople of Eneland to maintain
Beech. You should bring a writ of error. You should their proper position in the Constitution,lie woiald contend
go to the House of Lords." What would be the result ? they would not be properly executing that duty hy releasing
(Hear, hear.) Was it true that the beauty of the British those Sheriffs. Now, what was
the position of these
Constitution consisted in having three distinct and inde_ Sheriffs? Toey had a writ of execution against Hansard,
pendent branches? House the Hoe of Commons no power ? and he was not surprised to hear the Hon. Member for Ox-
Why its existence in the year 1840 was the best proof. ford pitying them, end saying they were bound by their oath
Through what conflicts had it passed ?_( Hear, hear.) to execute it, but really that any of his Learned Friends
What opposition had it overcome ? what perils had it over- should express such an opinion, appeared to him—he
come ? (Hear, hear.) Yet it existed.---( Renewed begged their pardon for saying so—an insult to the under-
cheers.) Mie Justice Coleridge was one of the Judges standing of the House.__( Cheers; and Oh, oh !) Of
who passed the judgment out of which all those proceed- course, if these Sheriffs were to be considered 'martyrs,
ing had arisen. But that Judge had published an edition and bound by their oaths to execute this writ on the
iof " Blackstone's Commentaries," and he (the Solicitor- Messrs. Hansard, then all Ambassadors must be arrested,
General) would read a passage from that edition of Black. all Members of that House, and Peers of the realm, must
stone, which bore directly on the question. The passage be arrested ; and, of course, all franchises must be consi-
was this:—" But the Constitutional Government of these dered at an end.._(Clieers, and cries of seam el lie
islands is so admirably balanced and combined, that was quite sure if Hon. Gentlemen saw the' ieffect of the
nothing can endanger it, except destroying the equilibrium statement, they would not admit it ; but if the oath was
between one branch and the rest, or that it should happen as had been supposed, then any Member or Ambassador
that its independence should be lost, or that it should be- might be arrested. • The writ was not issued by the Court,
come subservient to the other two."—((;heers.) There any attorney's clerk might go and issue a writ, -on paying
would soon be an end to the constitution of that House, the fees of office, of coarse. If the oath of the Sheriff should he be obliged to have recourse to the Courts of binds him to execute all write, how is it that an occur-
Law, or to the House of Lords, in the last resort. Would rence of this nature takes place every day? A writ is is-
the equilibrium in that case be maintained, or would it sued, the person against whom it isistued•tells the Sheriff
not be entirely destroyed? If he understood his Hon. and I intend to dispute, and will give you an indemnity.
Learned Friend rightly, there was no law of Parliament, The Sheriff takes the indemnity, and returns mina
as distinct from the common law of the land. His Hon. bone when there is a house full of goods; he is protected
and Learned Friend said that the privileges of that House by his indemnity, and never looks to his oath as to
depended upon the general law of the country.—( Hear, how he is to execute his writs. This is a matter of every
hear.) What did he mean by this ? Did be day occurrence, as must be known to every Member of the
mean to deny that there was a law of Parlia- profession ; and, really knowing this,
to hear Learned
merit distinct from the common law, as much at least Gentlemen contend that what the Sheriffs did was inlY
as ecelesiasecal law? The vs-bole law of Parliament had done in chedience to their oath, did Teem to him something
its origin in one maxim, which was to be found in Justice very like an insult. Their oath only binds them to execute
Blackstone, edited by Justice Coleridge—fur they were such writs as ought to be executed. —( Cries of " Oh, oh 1")
both Justices, and the only difference between them was Hon. Gentlemen cried Oh, oh I If he were wrong bow
that, through a long life, Justice Blackstone maintained was it that privileged parsons were not arrested ? Now,
his opinion, whereas Justice Coleridge changed his.—(A Mr. Hansard was a privileged person—(Cheers)—and all
laugh.) The maxim was thus expressed—" Whatever mat- that the Sheriffs had considered in that case, W.IS not the
ter arises in either House of Parliament ought to be exa- stringency of their oaths, but which was the strongest, the
mined, discussed, and determined in that House, and riot House or the Court of Queen's Bench. They had con-
elsewhere.—( Hear, hear.) The maxims on which they sidered that the Court of Queen's Bench was the strongest,
proceed, together with the mode of proceeding, rest and had acted accordingly. In cases where there was a
entirely with themselves—( Hear, hear)—.and their inde- return of nulia bona, or:non es! inventus, when the
pendence consists in their keeping their privileges clear and Sheriffs had received an indemnity, no being ever heard
intact."—(Cheers.) It is necessary that each branch of in such cases of a Sheriff's oath. They had executed that
the Legislaturii should be able to stand firm and resist the writ on their own responsibility, mid they were not bound
others. Whoever would take that view of the question to execute by their oath. They were bound by their oath
must see that the nature of the conflict to which that to execute their office according to law. If they consi-
House might be exposed, and the quarter from which the dered this en it did not ieterfere with a privileged person,
attack might come, could not be judged a priori. Tire then they were bound to execute it, but not otherwise.
House of Commons was designed as a check upon the It has been said that the former proceedings in the Court
House of Lords and the Crown, and especially on the had led the Sheriffs to suppose this, that, and the other.
House of Lords, which stood between the people grid the That argument could not prevail in this case, because the
Crown. Now, if either of those Houses held its privi- Sheriffs had express notice, before they received the writ
leges subject to the judgment of the other, bow was it to ex- or knew anything of it,tof the resolutions of that
.House.s
ercise its functions as an independent branch of the Legis- Why did they do that ? Because they were misateavieinie d.
lature ?—( Hear.) By what means could that House resist They thought the House had not the. power of
maintaining
the encroachments of the other branches ?—( Hear, hear.) the privilege alleged to be infringed. They thoathoughtthe,
It was not for immediate benefit, •or the collective advan- were safer in yielding obedience to the Court of Queen's
tage of the House itself, its privileges were to be main- Bench. And now he came to consider what were those
tamed; but if it were not able to resist the encroach- means by which each House of Parliament had,
mi ents• of the, other branches, in what was the equilibrium up to the prevent day, maintained its stationin the
of the Constitution, to be preserved? How often might Constitution. By constantly committing Sheriffs and
the question of privilege arise ? There was not a ques-
committing Bailiffs. Nobody ever dreamt of an oath in-
tion which they might put—there was not a person terfering. In some few instances Parliament had inter-
whom they might examine—there was not a paper for fered with a higher authority, but • the general cause was which they might call—.but the Queen's Beech might this—a person was arrested who claimed the privilege.
interpose a question whether it was necessary The House ordered the Sheriff to attend with his prisoner,
or not for the - exercise of their functions. and if the Sheriff had arrested the party, with notice of the
The Queen's Bench lied admitted that whatever was no- privilege, the practice was, to commit the Sheriff and to
emery for the exercise of their functions was for acquit the prisoner. If Hon. Gentlemen would turn over
the decision of the Houses of Parliament themselves. But the law journals, or any of the other journals, they would
at the same time that the Court gave the House the con- see that that had been the constant practice. The House
trol of its necessary privileges the judges assumed to de.. had no other means of vindicating its privileges.—(Hear,
termine what privileges were necessary, and you might bear.) Then it was said, "but there will be no
you end to this." Why the House by that course had over-
reserve
give
obo body
yourselfthe powerthp 0
wtoerdot
to
(hi
eatte
ri is
iuehe necessary,t
the en
the come worse times than these—when it had Courts, and
necessary and the unnecessary. If you do, the power Crowns, and Lords against it. The privilege was assailed
would be perfectly harmless.—( Hear; hear.) If through the Sheriff, the officer of the law. The officer was
that House was to have the power necessary to dis_ dealt with. It was extraordinary that those who admitted
charge its functions, but another tribunal was to decide the privilege was essential to the proceedings ofthe House,
what power was necessittY—he begged to ask what became and that it existed, should tell them to have pity on the
of the privilege?--( Cheers.) The Courts of Law had Sheriffs—that they had acted under a sense of duty and
the decision as to what was the common or the statute law ; ought to be let out. Yes, if they were inclined to tell
but they could not decide what was necessary to that Sheriffs they might disregard their privileges, let them out.
House for the exercise of their functions ; and when those —( Cheers.) Then it was said suppose this happened,
Courts said that the communication of what passed in that and suppose that happened. Why suppose everybody defied
House was not necessary for the exercise of its functions the House at every step—let it go through every Court in
there was pretty certain indication as to that would be their' the kingdom—it -would come round to the same point
course if the privileges of the House were in their bands. —commitment.—( Hear, hear, hear.) Why it was that •—( Hear.) Not only would the House be subject to rod- power of commitment which had preserved the Constitu-
sion on every question which they might ask, on every tion aid preserved the Courts.—(Hear, hear.) The
person they might examine, and on every paper they might House could never maintain its privileges except by pre-
send for—but if a Member were sent for to be examined in venting the officers of justice yielding obedience to man-
es Court of Law aS to what assed in that House who was dates inconsistent with its privileges, yet that was their
,to decide whether he should disclose Bench or that House ? The House had• decided that bers ? By fear of conamitment.—( Hear, hear.) The
it or not The Queen's only mode, How were Sheriffs prevented arresting Mem-
no one should be called on to answer elsewhere for any Sheriffs had now the money of Mr. Hansard in their
statement made before it, and that witnesses should not pockets ; but suppose instead of the moeey they had Mr.
criminate or endanger themselves by their answers to quest Hansard's person. They had got Mr. Hansard in their
tions of the House. But if the Court of Queen's Bench pockets in the shape of money.--.(A laugh.) Would they_
that
thought proper to call Mr. Gurney before it, how could permit Mr. Hansard, entitled to the protection, of ttli
et
the House protect him from disclosing what passed there? House, and that protection technically describad as
theh
Again Members were exempt from attending upon Juries. privilege of Parliament—would the House discharge _
But if the Queen's Bench chose to require the ser- Sheriffs while they retained:Mr. Hansard in their. custody_?_
vice of a Member, who was to decide that his The question, therefore, was, whether the Sheriffs should
attendance in that House was necessary to the ex- be permitted to render this breach of privilege effectualet
ercise of his functions as a Member of Parliament ? to Mr. Stockdale's purpose by giving him the fruits t
Look again at the course of impeachment; if you want to the proceeding. That was the question. It was said,.
examine into the administration of justice, the Court of how long will you keep the Sheriffs ? His answer was, till
Queen's Bench would say we must judge first whether that the privileges of the House were vindicated.—(Cheers.)the
for
._
is one of your privileges, the witnesses would refuse to at- If the House was contending for their privileges,
Cheers.)
tend, and, in fact, there was not a single function of the benefit of the people of England, no pity for the Sheriffs
House which could be discharged without subjecting the ought to be put in competition with their duty.—
be com-
House to be met on the subject of privilege in the Court Would the Court of Queen's Bench so outrage duty.—(Cheers.)
Queen's Bench, which was arrogating to itself the right tional Law as to send Sheriffs after Sheriffs to „e
of deciding the privileges of
Member
that House.—( Hear, hear.) nutted by the House? Certainly they would not. "
There could be no doubt that the character of the Judges had read in the newspapers that a diatingtiisht
taMrfe:ing
had been much improved by those laws which made them had said, " was there any instance of this House
independent of the Crown, but they had no new with an action ?" Why, if that Honoura
ble Member