CHAPTER V.

PRIVILEGES OF PARLIAMENT.

Proof of Privilege.-Nature of Privilege.-The Parliament as Council of the Crown. -Omnipotence of Parliament.-Fortescue's Opinion.-Hale's, Burleigh's, and Blackstone's.-Parliament changes the Religion of the Realm.-Privilege and the Courts of Law.-Stockdale v. Hansard.-Conflict with the Queen's Bench.Statute concerning the Publication of Parliamentary Papers.-Mansfield, Denman, Littledale, Patteson and Coleridge concerning the Limits of Parliamentary Privileges.-Privileges have to be Proved.-Collision of the two Houses in Matters of Privilege.-The Lower House as a Court of Law.-Arbitrariness of Procedure.-Prohibition against Printing Parliamentary Reports.-Later Usage. -Exclusion of the Public.-O'Connell and "the Times."-Actions for Libel in Parliament. The Upper House a Court of Record.-Kneeling at the Bar.Prosecution of Petitioners.-Responsibility of Members Publishing their Speeches.-Arrest of Members.-Bankruptcy Laws.-Protection of Witnesses. THE law of parliament is a portion of the unwritten law of the land.* In 1704 it was resolved by both houses of parliament "That neither house of parliament has power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of parliament."

Parliamentary privileges concern either the general body or individual members. As a body politic, parliament, but chiefly the upper house, constitutes the "supreme council of the crown." "The house of commons is a council of control, but it is likewise a council of advice, and I think the man ill read," says Canning, "not in your journals, but in your constitution, who should say that no case of such transcendent importance could exist in which it would not be competent for the legislature, by the timely interposition of advice, to prevent the necessity of control."+ Whereas any individual peer has the right to claim an audience, the lower house can claim admission to the sovereign only in corpore, and headed by the speaker.

The idea of the omnipotence of parliament is not of recent date. The mad parliament at Oxford declared in 1258-" Parliament is the supreme power; it is ever of like and absolute authority. It

*

May, Parl. 60.

Hansard, Ser. iii. vol. xii. 784.

recognises nothing higher upon earth; no former parliament can control a later one." Parliament decides, consequently, by its own legislative capacity respecting its privileges. Sir John Fortescue declared in 1451, "It hath not been used aforetime that the justices should in anywise determine the privileges of the high court of parliament, for it is so high and mighty in its nature that it may make law, and that which is law it may make no law, and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices."*

Sir Matthew Hale observes, "that parliament being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should in any way fall upon it, the subjects of this kingdom are left without all manner of remedy." "England can never be ruined except by a parliament," says lord treasurer Burleigh. "What the parliament -comprising, that is, the king-doth, no authority upon earth can undo, saving only the parliament itself." For it has, according to Blackstone, absolute power, it is omnipotent.† Delolme hazards the assertion that "parliament can do everything which is not impossible. Hence it cannot make a woman a man, and a man a woman." Christian‡ remarks with reason, that "the omnipotence of parliament signifies nothing more than the supreme sovereign power in the state, which power it is true is more extensive in England, by reason of its unique character, than anywhere else." Since the exercise of the royal prerogative has been gradually transferred to parliament or the cabinet, it may be contended that rarely has a more puissant representative of the state power, or one invested with larger attributes, ever existed in any state.

Under Henry, Mary, and Elizabeth it changed and re-changed the religion, and, under William III., the succession to the throne. In the reign of Henry VI. it set aside a portion of its own electors; under William IV. on the ground of expediency withdrew from corporations the right of representation, and, on the like ground

Pauli, v. 661. Lex et consuetudo parliamenti ab omnibus quærenda a multis ignorata, a paucis cognita (Coke). In comitiis parlamentariis posita est omnis angustæ absolutæque potestatis vis (T. Smith, Angliæ descriptio). Quidquid in centuriatis comitiis aut in tribunitiis populus Romanus efficere potuisset, id omne in comitiis Anglicanis tanquam in cœtu prin

cipem populumque repræsentante commode transigitur; interesse enim in illo conventu omnes intelligimur; cujuscunque amplitudinis, status aut dignitatis princepsve aut plebs fuerit, sive per ipsum hoc fiat, sive per procuratorem (Ibid. 179).

+ Bl. i. 160.

Bl. 161, note 12.

of expediency, in 1716, introduced" septennial" parliaments, and prolonged its own official existence. English historians who take their stand on the ground of parliamentarism, deny, indeed, that the last-named act was usurpatory.* Schlosser, on the other hand, contends that by means of this measure, the law and constitution were doubly violated.†

In determining matters of privilege, parliament is a special court of law, each house having equal right, and being actually able to emancipate itself from all protective forms, and by a mere resolution to cause individuals to be incarcerated. In its legislative capacity, parliament may at once, by a legislative act, and without resorting to any of the usual modes of judicial procedure, punish any one in life, limbs, estate, and honour.

In matters of privilege parliament is judge in its own cause, and does not suffer any interference on the part of the courts. "All matters concerning the peers and commons in parliament ought to be determined by the law and customs of parliament, and not by the laws of any inferior court," says Chief Baron Comyn, meaning thereby the law courts. "It is our duty," says Blackstone, in the Brass Crosbye case, "to assume that the resolutions of parliament and their execution are conformable with the law." A person put in arrest by one of the houses of parliament cannot by the writ of any other court of law, not even by a writ of habeas corpus be liberated, save by the special consent of the house.§ As the law of parliament now stands, the two houses are invested with a separate and uncontrollable power of making laws as occasion may require, of grinding, as it were, a little new law as they want it, and to suit the particular cases which arise; nor is any limit but their own discretion assigned to this pretended right.||

The courts at Westminster have, even in our century, manfully upheld the independence of justice against the encroachments of parliament. The celebrated Hansard case discloses one of the most memorable conflicts between parliament and the courts. In a report which the brothers Hansard, the printers to the house of commons, had published by order of the house, the jail-governor

*Hallam, Const. Hist., iii. 316. Mahon, i.

† Schlosser, i. 285.

May, Parl., 150.

§ Bowyer, 13. This latter practice

first obtained in 1704. Parliament had not previously taken heed of the writ of habeas corpus.

Brougham, Const., 260.

G G

Stockdale felt himself aggrieved, and in 1836 brought an action for libel against the printers before the law courts. Lord Chief Justice Denman in his summing up, instructed the jury that the order of the house of commons directing Messrs. Hansard to publish their parliamentary reports was no justification for them, or any one publishing a report, containing a libel upon any man. The jury, however, acquitted the Hansards, because they did not discover any libellous matter in the report.

When parliament reassembled the lower house declared this interference of the courts a breach of privilege, and passed the following resolution :

"That the power of publishing such of its reports, votes, and proceedings as it shall deem necessary, or conducive to the public interests, is an essential incident to the constitutional functions of parliament, more especially by this house, as the representative portion of it.

"That by the law and privilege of parliament, this house has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in parliament, is a high breach of privilege, and renders all the parties therein concerned amenable to its just displeasure, and to the punishment consequent thereon.

"That for any court or tribunal to assume to decide upon matters of privilege, inconsistent with the determination of either house of parliament thereon, is contrary to the law of parliament, and is a breach and contempt of the privileges of parliament."

Stockdale, however, immediately brought another action, to which the house, instead of acting on its recent resolutions, directed the Messrs. Hansard to plead. They were unanimously condemned by the Queen's Bench. Stockdale commenced a third action against the Hansards, the defendants did not appear; judgment went against them by default, the damages were assessed in the sheriff's court at £600, and levied by the sheriffs.

At the meeting of parliament in 1840, the sheriffs had not yet paid over the money. The house of commons continued deliberating upon a matter in which the courts had contemned its resolutions, and the serjeant-at-arms received express orders to arrest Stockdale. The sheriff's were required to restore the money,

and they in like manner, on refusing, were committed to the custody of the serjeant.* Howard, the attorney of Stockdale, incurred a reprimand; the sheriffs remained in possession of the money until compelled by an attachment from the Court of Queen's Bench to pay it over to Stockdale. Had the sheriffs not complied with this order, they would have been punished by the Queen's Bench for contempt of court. While Stockdale was in custody, he brought, by means of the same attorney, a fourth action, and in consequence of this was sent to Newgate with his attorney.† The brothers Hansard were enjoined not to plead. Judgment was once more entered up against them, and another writ of inquiry issued.

As, however, France, the undersheriff, who had to execute the writ was furnished with a copy of the resolutions of the house, he expressed his readiness to obey, and by a petition prayed the protection of the house; he was thereupon allowed to show cause before the Court of Queen's Bench why the writ should not be executed. The imprisonment of the plaintiff and his attorney did not, however, prevent meanwhile a further suit from being brought. The son of Howard and his clerk Pearce, who had concerned themselves with the matter, were in like manner committed. The printers were not allowed to plead, which mode of acting was regarded by the independent courts as illegal; parliament, on the other hand, punished the subordinates and the plaintiff; the former because they had done their duty, and the latter because he had followed up his right. It was unable, however, to stem the course of justice, as the Queen's Bench would, at all hazard, have punished the contempts committed against it. Parliament did not, however, risk pushing the matter to extremities; although it might, perchance, relying on its own paramount authority, have proceeded to commit even the judges of the Court of Queen's Bench. The difficulty was tided over by recourse to legislative measures. The statute 3 and 4 Vict. gives summary protection to the printer who, on an order from parliament, publishes any parliamentary papers, and thus finally brought the unseemly contest to a close. But supposing the upper house had rejected the bill, and everything had reverted to the old course? May observes with justice, "The present position of the privilege question is in the highest degree unsatisfactory, as + May, Parl., 159.

session.

That is, for the duration of the

Ibid., 167.