The Sun.
London, England, 1844-11-16 00:00:00

LAW INTELLIGENCE.
COURT OF QUEEN'S BENCH, Nov. 15.
(Sittings in Banco.)
HOWARD V. GOSBETT.

(Continued from our Afternoon Edition of yesterday.)
Mr. Justice COLERIDGE—In an action against a magi-
strate for false imprisonment, if the warrant is bad, but
he sets forth that the conviction is good, would not that
be sufficient, supposing he only pleaded the general issue?
Mr. KELLY submitted that such a case could not apply
to an action brought against the officer executing the
warrant, although it might if they were suing the House
of Commons, or the Speaker ; but he apprehended that,
as the action would be for the imprisonment, and not for
the conviction, the setting forth the conviction would not
be a sufficient justification.
Mr. Justice COLERIDGE—I do not say so ; but is it
not a general notion—l do not say whether right or
wrong— but is it not a general notion that a bad warrant
may be aided by a good conviction ?
Mr. KELLY apprehended not. The party sought his
remedy against the party arresting him for the impri-
sonment, and not for the conviction. If a magistrate
possessed the power on conviction by parole directions
without the intervention of any written document, of
ordering imprisonment, then the conviction might justify
such imprisonment ; but if it was necessary that the
warrant should be made in writing, and such warrant
should be found to be bad, then the party would have
been illegally committed, and would be entitled to his
remedy. Now, what were the averments in the third
and fourth pleas? They were—that the plaintiff, having
been summoned to appear at the bar of the House of
Commons, failed to attend, and that thereupon an
order was made that he should be brought to the bar in
the custody of the Sergeant-at-Arms, and compelled to
give evidence. Now this was not an arrest for contempt.
It was an attempt on mesne process to compel a
person to give evidence—a power possessed by no tri-
bunal in the country. He submitted that the House of
Commons had no power to arrest any of the Queen's
subjects on mesne process. They had a right to sum-
mon a person to their bar to give evidence, and on his
refusal to attend, they had a right to adjudge him in con-
tempt, and having so found him guilty of contempt they
had a right to commit him. But they had no power to
commit him for anything but contempt, least of all had
they the power to commit on mesne process to compel a
party to give evidence. He would not go into the pre-
cedents furnished by the House of Commons, for pre-
cedents might be found there for every crime and every
folly, from the taking off the head of a king to the com-
mittal of a person for serving a notice in a case of eject-
ment on a servant's servant of a Member of the House ;
but there were no precedents to be found in cases argued
and decided in courts of justice showing that the
House of Commons possessed the power of arresting on
mesne process, and it was not a sufficient justification for
them to assume that they possessed such a right, and he
relied upon the judgment in the case of Stockdale v.
Hansard in support of that position. The possession of
such a privilege must be distinctly averred, and could not
be taken by intendment, as was done in these pleas. The
plea ought to have distinctly shown that the plaintiff had
been served with the summons to attend—the averment
that he had had due notice was not sufficient.
Mr. Justice COLERIDGE—Do you contend that he
ought to have had personal service ?
Mr. KELLY contended that the plea ought to have
shown that he had had such service as was usual. He
therefore submitted that the warrant which was relied
on as a justification was bad, inasmuch as it set forth
no cause of arrest, neither did it give any directions as
to the imprisonment. But the defendant could not fall
back upon the averments in the pleas to aid the
defective warrant ; but if the Court should hold
that he could fall back upon those aver-
ments, then he submitted that the Court would
not by its decision hold for the first time that the House
of Commons possessed a power of imprisonment like that
now sought to be claimed, and would not recognise by
giving it their judicial sanction the existence of a power
which had never before been claimed by any court of
justice.
The SOLICITOR-GENERAL felt the deepest concern in
rising to defend the privileges of the House of Commons,
the very existence of which was directly struck at by his
Learned Friend's argument. The existence of these privi-
leges had always been admitted. It was admitted that the
recognition and the exercise of them was essentially neces-
sary to the House for the performance of its important
functions, and it appeared that there was now a desire
to strike down these privileges of the House one by one,
by appealing to the judicial tribunals of the country.
He trusted, 'however, they would find that protection
in this Court, which would not render it un-
necessary for them to resort to self-protection.
Ho trusted he should never forget the respect
that respect, he insisted in the strongest manner
on the existence of those privileges of the
House of Commons. Now, in this case, the first
plea alleged, that certain matters and things were then
in debate before the House of Commons, concerning
which the House considered it necessary that the
plaintiff should be examined at their bar, and that the
House, in pursuance of its ancient usages and privileges,
ordered the said plaintiff to attend the House forthwith,
of which order the plaintiff had had due notice ; and
that the said plaintiff did not attend, but wilfully, con •
temptuously, and without reasonable cause or excuse,
refused to obey such order, whereupon in order to compel
the attendance of the said plaintiff, the House, accord-
ing to its ancient usages and privileges,
and in accordance with the law and custom
of Parliament, ordered that the plaintiff should be
brought before the House in the custody of the Sergeant,
and that the Speaker should issue his warrant accord-
ingly; and that the Speaker, in pursuance of that order,
and in accordance with the ancient usages and privi-
leges of Parliament, had issued his warrant, reciting the
order of the House, and that upon that warrant the de-
fendant had taken the plaintiff into custody.
Lord DENKAN—The order sets forth that he shall be
brought to the bar of the House of Commons.
The SOLICITOR-GENERAL was much obliged to his
Lordship—it did so. The second plea was the same as
the first, and the third plea alleged that the arrest was
justified by the contempt of their ancient usages
and privileges of which the plaintiff had been guilty, and
concluded in the same manner as the first. To these
pleas the plaintiff had demurred—admitting that the
summons had beea issued—admitting that he had had
notice—admitting that he had contemptuously, and
without excuse, neglected to attend—admitting that all
that had been done had been done by the House of Com-
mons in pursuance of its ancient usages and privileges,
but affirming that these pleas were not a suffi-
cient answer to the action, inasmuch as the
order did not set forth the cause why he was
to be examined, or show why he had not a right
t• conceal himself, nor on what occasion he had
been guilty of contempt; and the Court was called upon
to decide that acts done in pursuance of the admitted
ancient usages and privileges of the House of Commons,
and according to the custom of Parliament, were illegal,
and that in the most degrading, offensive, and contemp-
tuous manner that could be imagined. The first point on
which he insisted was, that the defendant being an officer
of the House of Commons was protected by the order of
that House directing him to do to the plaintiff the thing
complained of, and that such order of itself, and without
more, was an answer to the action. The latter part of his
proposition undoubtedly led to the consideration of the cor-
rectness of the judgment of the Court in the case of Stock-
dale v. Hansard ; and notwithstanding all the rtspect he
bore to their Lordships, he must be permitted to shy that he
was not to be taken as being precluded by that judgment
from firmly protesting against the decision in that case,
in order that if hereafter that judgment should be called
in question, his acquiescence on the part of the House of
Commons might not be quoted in support of it. But this
case essentially differed from that of Stockdale v. Hansard.
There was no allegation in that case that that which
was done had been done in pursuance of the ancient
usages and privileges of the House, which was alleged in
the present case, and which was admitted by the de-
murrer ; and he would call their Lordships' attention to
the judgment `of each of their Lordships in the case of
Stockdale v. Hansard in support of this view. It was
impossible for their Lordships to avoid giving
judgment in favour of defendant without deciding
that the House of Commons had no legal right
to exercise their admitted powers and privileges.
In giving judgment in the case of Stockdale v. Hansard,
their Lordships had admitted that they had no right to
question the exercise of those rights and privileges
which the House of Commons was acknowledged to pos-
sess. The House of Commons had unquestionably pos-
sessed those different privileges and powers, and had
exercised them from the earliest period without question,
and they were absolutely necessary for the due per-
formance of its functions. The powers of the House of
Commons were different from those of courts of justice.
Courts of justice could not originate an inquiry. The
House of Commons could. Lord Coke called them the
great inquisitors of the realm, and referred to their own
journals—to those journals, the authority of which was
denied by Mr. Kelly, from a knowledge of those privi-
leges, and of the manner in which they were exercised.
In the judgment in the case of Stockdale v. Hansard
there was the strongest recognition of those very powers.
In a case of conspiracy for an invasion, which might be-
come the subject of inquiry before the House of Com-
mons, were they to give notice to a person who might
perhaps be implicated in that conspiracy of the subject
on which they wished to examine him, giving him in fact
notice to abscond ? It was very doubtful whether a ma-
gistrate did not possess the power of compelling the at-
tendance of witnesses.

Lord DENMAN—What is the case with regard to
coroners ?

The SOLICITOR-GENERAL—It was very doubtful whe-
ther a coroner did not possess the power of issuing his
warrant, to compel the attendance of a witness, but the
House of Commons had always exercised the power.
Lord DExmAN—But I should like to hear you say
a little more of the power of compelling the attend-
ance of witnesses, possessed by courts of common law.
Suppose I was sitting here at Nisi Prius, and a witness
were contemptuously to leave the court without giving
evidence, and I were to be informed that he was in
Palace-yard, and refused to attend, ought I to permit
the course of justice to be interrupted, knowing that he
was within the reach of my officers ? Have lor have I
not the power to order his arrest ?
The SouciTati-C,ENErtaL—Your Lordship ought to
have the power, certainly, but it is a power that has
never been exercised, and there is no judicial decision en
the question.

Lord DENMAN-It is a most important question.
Practically we depend upon subpoena and recognisance for
compelling the attendance of witnesses, but it is very im-
portant to consider whether or no we possess any further
powers.
The SOLICITOR-GENERAL now came to the question of
the validity of the warrant, and he submitted that it was
the duty of the Court to make every favourable construc-
tion on behalf of the House of Commons. The warrant
was admitted to be in conformity with their ancient
usages and privileges, and therefore the presumption
must be in f'avovr of its validity.
Mr. Justice WiauTmAx—The warrant is to take him