Page images

Criminal Proceedings are, however, as liable to be stayed or prevented as civil actions; to the same extent and by the same means. A prosecutor might be deterred by the fear of personal suffering as easily as a plaintiff. But the public represented by the Crown is the party moving. On its complaint before the magistrate the accused is bound over to appear: if he fail, his recognizance is estreated : all the witnesses are placed in the same position. Is Privilege to enjoin the magistrate to receive no depositions, and take no recognizance-or to order the witnesses, though bound over, not to appear at the hour of trial-or to inbibit the court from estreating the recognizances? Great vigilance may find out all that is going on, and great activity may thus oppose the proceedings in every stage-if Parliament is sitting. But if the prosecution choose to carry the bill of indictment before the grand jury with ex parte evidence (for they can hear no other)—and the defendant pleads and takes his trial-all may be concluded during a recess, before it is possible for either House of Parliament to interfere : the scandal of their doing so would be as useless as revolting. If, in the meantime, the party is acquitted, interference is unnecessary; the law has been found sufficient: but the party may happen to be convicted upon clear and satisfactory proof; and the only effect of depriving him of the shield of Privilege will be one in which all good men will rejoice. It has come too late to protect a perjured man from punishment!

The possibility of a collision between Privilege and the Criminal Law may involve still more serious consequences; to which allusion was made in the judgment of the Court of Queen's Bench in the case of Howard and Gossett, and which were glanced at, but by no means canvassed as their importance demands, in the late debates upon that case, as they are reported. The four judges were divided in opinion upon the sufficiency of the warrant to justify the trespass and assault complained of: all agreed that they were bound to examine into its sufficiency; but one of them was satisfied, while the other three appear to have held it insufficient. In the debates these judges were severely censured for so holding; it was observed that, whatever the form and construction of the warrant might be, the object of the House in issuing it must have been apparent to the court; and their adherence to its direct grammatical import was ridiculed as savouring of pedantry.

If in this warfare, or rather, let us say, this siege of the Court, ridicule were a lawful weapon, it might perhaps have been successfully pointed against the aggressors. For, of all the privileges that can be claimed, the privilege of issuing an unintelligible or ungrammatical warrant, and of having it interpreted, 'P 2


not by any meaning that can be extracted from it, but by a plausible conjecture on the intention of the assembly from which it emanates, would seem to be the most preposterous. Why should so learned a body be exempted from the ordinary obligation of drawing up its instruments in such a form as may be clearly understood by all men, especially by those charged with the execution of them? Yet the argument was urged from high legal authority-as if the court were to guess at the wishes of others, which must be collected from all circumstances, instead of discovering the import of the document from its contents. The warrant is indeed an unsightly scrap of parchment, which senators may scorn to look at: but the warrant is the hinge whereon all legal proceedings turn: from that alone the officer derives his power to act. If resistance should be offered to him in the course of its execution, and death should unhappily ensue, an inquiry in a criminal court would be unavoidable, accompanied most probably with soine inflammation of the public mind. Whether the homicide charged and brought to trial were a lawful act or a murder, must depend on the legality of the warrant; and that must be submitted to the judgment of the court. The judges of that court will necessarily be called upon to decide whether there was power to issue such a warrant, and to hold it unlawful, if convinced in their conscience that it was issued without legal authority. But, though they affirm the general power, the meaning and effect of the warrant must also be referred to the same arbitrement. And a third question will then arise,—whether the officer's conduct upon the occasion conformed to the warrant according to its meaning. Here is a series of questions, on which it is difficult to see how the power of Parliament could be interposed, though the one or the other House, or both, might have proclaimed the strongest opinion on every branch of their legal merits.

When in the year 1810 the House of Commons resolved to imprison Sir Francis Burdett for a contempt, the legal consequences of his possible resistance do not appear to have entered into their consideration. But the popular agitation requiring Mr. Coleman, the serjeant-at-arms, as a prudent man, to arın himself with legal authority on the course to be taken by him, be caused a case to be stated for his guidance, and laid before the attorney-general of that day, the eminently learned lawyer Sir Vicary Gibbs. On the question whether he would be justified, in execution of the warrant, in breaking open the outer door of Sir Francis's house, the answer was in these terms,—the officer must judge for himself, whether he will venture to act on my opinion, which has no direct authority in point to support it, but rests on rea


Privilege Question.


soning from other cases, which appear to me to fall within the same principle' (17 Hansard, Parl. Deb., 566). No very perfect clue for pilotage through the slippery labyrinth of life and death! Lord Erskine afterwards, arguing strongly in the House of Lords in favour of the resolution of the House of Commons not to stay the action at law, but require their officer to plead to it, used the following language :—Why was any danger to the House of Commons or the country to be anticipated from a sober appeal 10 the judgment of the laws? If his noble and learned friend (Lord Ellenborough) and his brethren the judges had no jurisdiction over the privileges of the House of Commons, they would say they had no jurisdiction. If they thought they had, they would give a just decision according to the facts and circumstances of the case, whatever they might be. These facts and circumstances are considered, however, too clear for inquiry; yet the king's attorney-general, and a member of the House of Commons, when called upon by the serjeant for advice upon the subject, was obliged, and most properly, to admit that there was no precedent to be found for his forcible entry, and that if death ensued he could not undertake to insure him against a conviction for murder' (Ib. 852). Doubts of this serious and awful nature Wisdom may solve when they occur, but will be much more desirous to avoid.

In the exercise of discretion in determining beforehand whether a certain line of extraordinary proceedings shall be voluntarily commenced, common prudence would appear to dictate some regard for such results as are here indicated. We venture to think that they have not been sufficiently weighed, if indeed they were at all taken into the account; and would suggest the propriety of this being done before perseverance in such a course is irrevocably resolved on. If the case for interference were clear beyond dispute, the consequences might be fitly considered; how inuch more so when serious doubt exists whether any of the late occasions created a necessity for this resort to Privilege, or even presented a case in which its operation could be reconciled to wisdom or justice!

What are the actions likely to be stifled by interference? If the practice were once well established, every action at law in which a member of Parliament anticipated defeat, or in which some electioneering supporter thought his interest in jeopardy, might be twice brought into discussion in the House of Commons prematurely, and not without some hope of influencing, if not preventing, the trial; and afterwards, to scare the successful party out of the advantage which the law had awarded to him. And there is reason to believe that this practice formerly prevailed


extensively. But the class in which interference is in the first instance most probable, is that connected with matters strictly parliamentary. A Committee of Privileges has inquired into charges of bribery at an election, and has acquitted the member impeached. An action is, however, brought against him for the penalty. Here, as in the case of Ashby v. White, Privilege may assert its own exclusive cognizance, and wrest the inquiry from the judge and jury. Or if the member had been convicted and expelled, though that sentence had been obtained by falsehood the most audacious and the most easy of proof, Privilege may interpose in behalf of the false witness, and consign the injured man to a dungeon for aiming at the exposure of calumny.

Some of the examples on which we have commented are acts of meddling with the concerns of individuals, affected by private bills, and more especially by those of the all-absorbing railway companies. Nothing had previously occurred to deprive the subject of his remedy for an injury brought upon him by such enactments, if fraudulently obtained: that frauds were unblushingly carried on to an enormous extent was universally believed—but there is reason to fear that the precedents established may give licence and security to any advantage, in whatever manner obtained, whether before a committee up-stairs, or through the vote of the House itself. And thus vigilance must be paralysed and punished precisely in those cases where the temptations to fraud render it the most necessary.

One thing only remains to be noticed,-a desire which has been expressed in some quarters to set all questions on this matter to rest by the enactment of a new law. Whenever such a proposal may be advanced, it will be entitled to the most respectful consideration : and in the meantime no word should be uttered which could prevent the experiment from being tried with every chance of success. Englishmen can never forget or overlook the public services rendered by the two legislative bodies, and especially by that which represents the people—the great abilities which are there displayed--the intelligence which they constantly infuse into the public mind. Whether the inferior qualities which are called into action for judicial purposes can be reckoned upon with equal confidence, may perhaps admit of reasonable doubt. But their usefulness in the daily concerns of life is also to be remembered. Be it kept in mind that the utmost care and jealousy have been employed for centuries in devising the means of selecting juries free from every bias of fear, favour, or affection : that the judges of the land have been studiously placed out of the reach of every feeling that can divert the mind of man from an honest pursuit of truth and that their inde


pendence was secured by the first act of that free parliament which, schooled by experience and suffering, fixed our constitution on its present basis : that to such juries and such judges the administration of the law, the most sacred of all trusts, is confided sometimes, as in case of libel, with specified restrictions and defined precautions, deemed essential by the legislature for the security of the people ;-and above all, that those laws can afford no guarantee for any of our rights, unless they are established, and capable of being understood, before they are called into operation.

Art. VIII.-An Act for the better Securing the Payment of Small

Debts. 9th August, 1845.

TT is of the essence of our Parliamentary constitution that all

1 legislative measures should be well weighed by both the Houses, and that the fullest opportunity should be afforded in each to correct errors, to counteract inadvertencies, to prevent trick and surprise-in a word, to ensure due deliberation and ample consideration of all that passes either chamber. With this manifest purpose have the Rules and Standing Orders of the two Houses been framed. Every bill ought in strictness to go through seven stages in one House and six stages in the other. If it is a bill sent from the Commons to the Lords, it does go through seven of these stages in the Commons and six in the Lords; if it is sent from the Lords to the Commons, then there are six stages in each House—the moving for leave to bring in, which is peculiar to the Commons, being here dispensed with in mutual courtesy among the Lords.

But there is this apparent anomaly respecting Amendments. These may be made at any stage of the bill, even at the last: hence they do not go through all the stages. In like manner a bill sent from one House may be amended in the other, and the Amendment is only considered once for all in the House from whence the bill comes as at first passed, and to which it returns as amended. Now it is quite manifest that this would open a door to the grossest abuses, indeed to an entire abrogation of the most essential standing orders, unless the fair and honest construction were put on the word Amendment. Thus no Standing Order can be suspended without notice; and therefore if it is deemed expedient at any time to pass over any stoge of a bill which the Orders require, as, for instance, to read it more than once in one day, notice of a motion to suspend the Orders must


« PreviousContinue »