Gambar halaman

as witnesses would be treated in all courts of assent of the Crown. And, lastly, we are justice; to examine all who shall be called condemning as well as trying parties before them, and if they will not answer, to brought before ourselves, for injury done commit them-if they prevaricate, whether to ourselves, against a law made by ourthey are examined on oath here, or not selves; and, as if that did not fill the upon oath, as in the other House, to measure of this lawless power, as I call it, commit them for that prevarication-I or, at all events, this irresponsible power, will add, not for the purpose of punishing we take upon ourselves the execution of perjury, because there is a punishment the sentence we ourselves pronounce upon awarded to that offence by the law, to be our own judgment of condemnation; folinflicted after trial and conviction; more- lowing our own prosecution for injury over, to break open repositories for the done to ourselves, against our own laws, purpose of obtaining evidence, to break made at our own good pleasure, by our open outer doors, to enforce the attend- own mere authority, for our own behoof, ance of witnesses, and to compel wit- but which laws are never promulgated till nesses to attend, and when attending, the case has arisen, and till we make a rule to answer. All these things are clear to meet it. This is the final measure of privileges, together with the absolute free- the cup of power, which you call privilege, dom of speech to the Members of both as you fill it to the brim, nay, even to overHouses which, by the by, is a sta- flowing; and it is against this that I most tuary freedom, though by a declaratory, humbly, but most confidently take leave not an enacting law-the freedom from to protest; it is against this that I enter arrest absolutely, and from all personal my solemn dissent, not merely on behalf constraint. All these are the privileges of the Crown, not on behalf only of the which I admit to be sacred, imprescrip- other branches of the Legislature, but on tible, inalienable, and absolutely neces- behalf of the people of England, and on sary; and it is on that absolute necessity behalf of their most sacred liberties, do I for the very existence of Parliament that enter my protest; and suffer me to add, I ground my clear and unhesitating ad- without offence, that I enter this protest mission that such privileges do by law on behalf of another body-I don't mean exist. But when I am asked to go a step merely the lawyers and the judges, and the further, and concede to each House the law and the administration of justice in power claimed by both-claimed inferen- Westminster Hall, but on behalf of the tially by the other House, and insinuated highest court of law in this land-on beby this, though clearly asserted by neither half of the ultimate court of error-of that -a claim by each to have the power of court at whose hands is sought remedy determining, from time to time, what are and redress from all other courts, if any its privileges; and from time to time, as wrong has been done or error committed occasion may arise, to declare what con- -on your behalf, my Lords, and for your stitutes a breach of those privileges; and sake, who are the hereditary judges of that to inflict punishment on the parties who supreme tribunal, I protest against this shall be declared to have violated them: anomalous, and inconsistent, and selfish, -here I must needs pause; for this is and repugnant power, which is sought to taking into our own hands a judicial power; be assumed and exercised by this House nay, more, it it is making ourselves law. -the highest tribunal of justice in this givers, declaring our own laws, each House country-which ought, above all, to set an for itself, and without the intervention of example of not violating the law, and of the other House, or of the Crown. In the not erring against the eterna! principles of second place, it is making ourselves pro- universal justice. My Lords, you are now secutors for a breach of the law which we called upon, for the first time in the hishave thus made for ourselves, and when tory of Parliament since I have been a we ourselves are the only parties to the Member, and I believe almost the first act of legislation. Thirdly, it is making time in any period of your history, to inourselves judges without jury, to try the terfere directly-I say, directly-and with offenders declared such by ourselves; so the mere force of your own privileges, to that we, ourselves, proceed by ourselves, drag a plaintiff before you, and to stop an for offences, declared by ourselves to be action lawfully commenced in one of the committed against the law made by our-courts of Westminster Hall, for an injury selves for ourselves, and without the alleged to be sustained by our fellow-sub

than one remarkable point, inasmuch as the other House does not examine any man upon oath, whereas you always do; inasmuch as they have no judicial character, and you are judges in the last resort and in the highest tribunal; and inasmuch as this very action may be brought ultimately before you in your judicial character on a writ of error. Yet you, the court of the last resort, say that you will not permit the plaintiff to prosecute this action, you will not allow him to lay the foundation of his coming before you as a court of appeal. You say, "We will not permit you to go on, we will punish you if you go on with this action in an inferior court, from which, in case of error, lies an appeal to us." There is another difference. I can well understand a person consistently saying in another assembly,

ject, who is a subject also of the Crown. | structions to discontinue it-you will Former privileges were of another com- straightway vote it a breach of your priplexion. Sir Francis Burdett brought his vileges, and you will instantly send the action against the Speaker for taking him client and his attorney prisoners to Newinto custody because he refused to obey gate. That is what this House is about the order of the House. That was a very to do, and to do for the first time. The different case from the present. Here is House so acting is in a very different poa case of civil right which attaches to ansition from the Commons' House on more individual; it is a right vested in that individual; it arises out of a wrong and a grievous injury inflicted on that individual, upon a complaint in which we have been informed, for we must take the whole together, that his character has been falsely and maliciously slandered by some other person; that he has been greatly damnified by this slander; and that for this same slander he has sought redress, as by law he might, by bringing an action in a court of law against the party so injuring him, in violation of the law. What are your Lordships now called upon to do? To pronounce that the action thus brought is a breach of the privileges of this House! You have examined the party at the bar; you have been driven to an act of no ordinary magnitude; you have gone the strange, the unheard-of length, of making a party disclose what his case at law is," We will not allow an action to be when, for aught that appears, except from brought; we will stop it by main force, the statement of the opposite party-for because an action brought will be referred the declaration does not say that the words to the Judges; from their judgment there were spoken before the Committee-the may be an appeal, and it will at last come action may have been brought for words to the House of Lords, so that we shall spoken anywhere else. The party called commit our privileges to a rival assembly, to the bar would have had a full right to and hand over our rights to a rival cananswer, "I wish to try my action before a didate for civic and judicial honours; we judge and jury, and if your Lordships will not, therefore, part with our power; will allow me, I had rather not disclose we will not give the staff out of our own my case in the presence and hearing of hands; we will not leave it to the Judges my opponent." How would your Lord- to determine what they believe to be our ships have liked it, if you had brought an privileges." But this does not apply to action against a tenant or against an op- you. If you are afraid of the court below, posing landlord, and if, even before a plea an appeal lies to yourselves. If in that had been pleaded and the action brought court there should be evidence admitted to issue, you had been compelled to de- that ought to have been rejected, or clare before us, in your adversary's hear-rejected that ought to have been admitted; ing, what you meant to do? With that, if the sentence be in any particular unjust however, I have finished; upon it I will or illegal; if the judge's charge to the say no more. I have protested generally jury be in violation of the law; if his senagainst it, saving for myself a full argu- tence on the verdict be unjust; if in any ment on the other parts of the case. You way whatever you think you have not had now say that it is a breach of your privi-justice below, a writ of error brings the leges to go on with the action. If the plain-case here, and then, whether you will or tiff threaten to proceed-nay, for aught I know, if he says, as he has said at your bar, that he does not intend to stop the action-nay, even if his attorney shall have said that he has at present no in

not, then, although you may be parties to the suit, ex necessitate, you must be the judges; and ex necessitate, you have in your own hands the power of ultimately righting yourselves, which the Commons


never can have; on the contrary, if that your protected witness, who must on aggrieved in the courts, they must resort no account be vexed by an action for to you, and trust in you for redress. So slander, may be harassed with an indictfar, then, as to the material points of dif- ment for perjury, presented by any one ference between the two Houses of Par- who chooses to buy sixpenny-worth of liament, with respect to stopping the parchment, and send a bill before the action. It is said, that you cannot carry Grand Jury at the Westminster Sessionon those investigations which are essential house. But then it is said, that is not a to the proper discharge of your functions, private suit, it is a prosecution at the inunless your witnesses are protected. And stance of the Crown. But the name of the no doubt they must have protection-they Crown is used, and that is all. The real must be protected, going, stopping, and party is the private prosecutor. But, supreturning, from all violence and from all pose it is, as this mere quibble would deillegal interference. They must feel, too, scribe it, a Crown prosecution, and at the that they can give their testimony without instance of the Attorney General himself, the slightest apprehension of danger to how does that mend the matter? Is it, themselves, from any violence, from any indeed, come to this? Are our boasted unlawful act; but I am yet to learn that it privileges only good against the people? is at all necessary they should be protected You have no privilege as against the against the ordinary course of the law, if Crown. Your spear of privilege," as in giving their evidence they have com- Sir F. Burdett called it, falls impotent mitted an infraction of that law under from your grasp as against the Crown; but, which they do not cease to act when they as against the subject, as against the enter your gates. It is said, how fruitless private plaintiff in an action, as against to examine a witness, if he is liable for the the people, it is omnipotent. It has evidence he gives, to be questioned in a been considered that the great advancourt of justice. But does that prevent tage of privilege was to shield the peohim from speaking the truth? If you ple against the Crown; but now it turns compel him to state that which slanders out that it is impotent for the people his neighbour, and his neighbour brings and omnipotent for the Crown; that an action, provided what your witness has it is powerless against the Crown, and spoken be the truth, he must get a ver- all-powerful against the subject. Then dict. He, therefore, runs no risk, is liable I pray you to consider a little what the to no danger, for the law is his protection. consequence of all this will be. I don't Only see how marvellously inconsistent mean to menace you with any formidable is the argument, that, in order to give him consequences; I speak only of logical protection, this House must stop the consequences in the argument of strictly action, and commit the parties to it. A legal consequences. You commit the witness swears before a Committee of this party and his attorney. But does that House to certain facts, and swears falsely; put an end to the action? Or you refuse though your Lordships do not prosecute the defendant leave to plead, can that stay him, he is still liable to be indicted for the proceeding? No such thing; the acperjury by any two individuals who heard tion remains; the action goes on. I find him give his evidence, though they should that a gentleman of the bar, who is not be the doorkeepers or any other attend- named, gave an opinion under which this ants on your Lordships' House. Such is action was brought. He gave sound and the end of the doctrine of protection. The lawyer-like advice; but for doing so, he is protected witness is indicted for perjury; liable to be visited, as well as the plaintiff what is the issue upon the indictment? and his attorney, with the displeasure of The truth or falsehood of the thing sworn. your Lordships' House, and sent to prison. And what is the issue here, if a justifica- Still the action is not stayed, even for an tion be pleaded to the action for slander? hour. It goes on as much as before; The truth or falsehood of the thing sworn; Parliament is prorogued; another attorthe very self-same issue; the one being a ney is found to carry it on, unless Parliacivil case, an action for damages; the ment should meet in order to incarcerate other a criminal case, a prosecution for him; and even if it did, another would perjury. So much for the consistency of still be found; but if Parliament imprithe advocates of privilege. No man pre-soned one after another, until they had all tends to deny, or even affects to doubt, the attorneys of the country in gaol, the

action would still be in court, awaiting the ture ever appeals to the law, no one supdecision of the Judges. You say you poses this resort either lowering to its digshould not allow the party to plead, be- nity, or perilous to its rights. The Sovecause it leads to the discussion of the case reign is always judged by the law, and before the Judges. But suppose there is surely his existence as part of the Constino plea, then there will be interlocutory tution is at the very least as ancient as judgment signed as of course for want of yours. I know that antiquaries have held a plea; a writ of inquiry will issue also of that there was great doubt if a Parliament course; the sheriff must act according to existed, as it is now constituted, before the the exigency of the writ, and the damages period of legal memory. There was the must be assessed; and if a writ of error Wittenagemot of Saxon times, and, more be brought, that will only bring the cause recently, the Colloquium, which, after the here, and here proceed it must, for we can Norman Conquest, obtained the French hardly proceed against ourselves for breach name of Parliament, a name that abroad of our own privileges. Non meus hic expressed not a legislature, but a court of sermo-this is what has been stated by justice; yet antiquaries have maintained Mr. Justice Patteson and the Lord Chief that it was not until the period of Henry Justice in the arguments on Howard's case. III., some years after the great charter was I have such high legal authority for say- passed by the Barons, not by the Coming that that is the law of the land, and mons, that there was what was then called that such will be the consequence of your a House of Parliament. Be that as it may, proceeding. Therefore, you have but one for I disdain to inquire into such trifles, course-face it, follow it; do all or do there was, at all events, a King. No one nothing. Don't be powerful by halves, doubts that. If the Houses of Lords and any more than just by halves. Don't have Commons existed not, there was a Crown, your privileges any more than your rights and although the ancient Executive Goby piece-meal. If you have a privilege, vernment of the country possessed much defend it-if you have a right, exercise it; influence and great power, yet I do not and what does that mean?-why, that you find that the Sovereign then ever arroshould commit judges and jury, and at once gated to himself anything like the privilege set Parliament in irreconcilable conflict which you pretend to. So it was under with the courts of justice. Irreconcilable, the Plantagenets, and afterwards under but also mortal conflict! For it will be the Tudors and the Stuarts. So it is to your privileges and yourselves that will be this day. If a subject has been encroachinvolved in destruction! But in the tem-ed upon by the Crown, the subject goes pest which you shall have so bootlessly, so recklessly, so senselessly conjured up, there will, through its turbulence, and its lowering darkness, shine forth a light to which all good men's eyes will be directed for comfort and for safety; not the lurid light of privilege which the law had extinguished, but the pure and steady light, tainted by no corrupt vapours, blown about by no factious blast, the light which the law derives from the untarnished sources when justice flows. Then we shall no longer have to perform the easy task of being both parties and judges-then we shall no longer stand upon that bad eminence to which our demerits have raised us, of being the only power in the country which is itself to determine in its own favour-then we shall be no longer the only party who will not appeal to that law which is equally for the protection of all, or appeal to those Judges who admiBister the law equally for all. And, after all, seeing that one branch of the Legisla

before the Judges, who administer the law, and the Sovereign meets him without any pretence of a privilege to supersede the law. If a wrong is committed against the Crown, the Crown prosecutes, by its law officers, and abides the decision of the Judges of the land. Then why should not Parliament deem itself as safe with respect to the rights and privileges it claims in going before the Judges as the Crown does, which never dreamed, from the beginning of the time when it exercised any privilege, of adopting any other course than that of going like a subject before the Judges! The Crown is constantly in the habit of issuing Commis. sions before which witnesses were examined, who require protection as much as those coming before Committees of this House; indeed, Committee and Commission are convertible terms. If, as before a Committee, a witness examined by a Crown Commission should slander his neighbour, and in doing so perjure him

self, that neighbour may indict him for | Crown. But admit that Parliament, as perjury, or bring an action for reparation against the Crown, might have recourse in damages and I should like to know to these high privileges, I may remind whether there ever existed an Attorney your Lordships of the excess to which the General, not excepting Noy, nay, suppos- Commons carried their success in the ing Noy to have been Attorney General year 1641, when they established the when Jefferies was Chief Justice, he never claim. In that year the Commons clothed would have dreamed of saying in such a themselves with the power of seizure and case, as is said in this, "Unless our committal-the next year, 1642, an order witnesses are protected we cannot carry was issued by the single House of Parliaon our inquiry, and instead of go- ment, without the Crown's consent, withing before the Judges we call upon you, out the consent of the House of Lords, for the Sovereign, to proceed upon the pri- marshalling the trained bands; another vilege which is vested in you, and com- order was issued for raising two troops of mit those persons who have dared to horse, to defend the Parliament, to probring this action against a witness ex-tect its privileges; and a third order was amined by your Royal Commission." No man was ever insane enough to give such advice even in those days when the prerogative of the Crown was exercised in its strongest and most oppressive form. Protect your witnesses, we hear it said; this is the whole end and object of the present ill-omened proceedings. I too say, protect your witnesses; but protect them lawfully-protect them as all courts protect theirs. No power can stop an action brought against a witness in any of the courts, and yet it is quite as necessary to protect witnesses in other courts as in this House. We hear it currently said, that privilege is the protection of Parliament against the Crown; and it arose, certainly, in times very unlike the present, when the Sovereign and the Commons were in habitual conflict. But now the Crown and both the Houses are ranged as regularly on the same side of every question. If Pym, and Hampden, and Coke, the leaders of the Commons-for the claims began at first with the leaders of the popular party in the House of Commons if these illustrious patriots had lived to see the time when there is no longer any apprehension of the Crown; when the Crown and the Ministers, and both Houses of Parliament, all understand each other, and work together so harmoniously; when the only possible cases of privilege must be, not against the Crown, but for the Crown-for Parliament and the Crown in this particular, have become one and the same-we should not have heard the Cokes, and the Pyms, and the Hampdens asserting these claims. The stern voice of prerogative, it has been well said, has now given place to the soft whisper of influence, and all privilege of Parliament insures to the use of the

[ocr errors]

issued to levy money for the sake of protecting those claims of privilege which were made by the Commons themselves. But the trained bands and the troops of horse were used not only to protect the privileges of the House, they were used to put down the Lords, to imprison the King, and to overthrow the monarchy by destroying the King's person; the votes of money were to afford the sinews of war, in order to secure privileges which the House grasped at in defiance of all the privileges and all the rights of the Crown. Nor is it unfruitful to the present purpose when we are asserting our privilege on the ground of former precedents, that is, of former acts done by our own House, that we should recollect what kind of things those precedents would justify. If I were to read to your Lordships all the privileges which you have still existing in your Journals and your Standing Orders, some of you would start to hear them recited. I shall not go back to the time when, I find that an honest gentleman from the Principality of Wales, in the reign of James I., of learned as well as high prerogative memory, for presuming to say that the King's son-in-law, the Elector Palatine, was "good man Palsgrave," and that his daughter, the Princess Elizabeth, married to the Elector, was "good wife Palsgrave," was sentenced without trial to be carried on a horse from Cornhill to Charing-cross, with his head to the tail of the animal; to be placed twice in the pillory; to be fined 5,000, and to be imprisoned in Newgate for life. But I will go to more recent times. After the Revolution of 1688 and 1689, you made Resolutions, in the shape of Standing Orders, that the servants of Members of Parliament of both Houses should have the same privi

« SebelumnyaLanjutkan »