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JUNE 28, 38



In speaking of this proceeding, Lord | mons were relied upon in defence of Ellenborough expressed his surprise Messrs. Hansard, and the Court of Queen's " that a judge should have been ques. Bench unanimously decided against them. tioned for having given a judgment Still the House of Commons was relucwhich no other judge who ever sat in tant to act upon its own resolutions, and , his place could have differed from.” instead of punishing the plaintiff and his,

In the case of Ashby and White so legal advisers, “ under the special circumoften referred to, the commons declared stances of the case," it ordered the dam" that whoever shall presume to com- ages aud costs to be paid. The resolumence any action, and all attorneys, soli- tions however were not rescinded, and it citors, counsellors, and serjeants-at-law was then determined that in case of future soliciting, prosecuting, or pleading in any actions, Messrs. Hansard should not case, are guilty of a high breach of the plead at all, and that the parties should privileges of this house." The effect of suffer for their contempt of the resoluthis resolution, if obeyed, would be to tions and authority of the house. Another, prevent the courts from coming to any action was brought by the same person decision at all upon matters of privilege, and for the same publication. Messrs. as an action would be stopped at its com- Hansard did not plead, the judgment mencement; but the principle has not went against them by default, and the , been adhered to.

damages were assessed by a jury in the When Sir Francis Burdett brought ac- sheritt's court at 6001. The sheriffs of tions against the Speaker and the ser- Middlesex levied for that amount, but jeant-at-arms, in 1810, for taking him to having been served with copies of the the Tower in obedience to the orders of resolutions of the house, they were anxithe House of Commons, they were di- ous not to pay the money to Stockdale rected to plead, and the attorney-general until they were unable to delay the payreceived instructions to defend them. A ment any louger. At the opening of the committee at the same time reported a session of parliament in 1840, the money resolution “that the bringing these ac- was still in their hands. The House of tions for acts done in obedience to the Commons at once entered on the consiorders of the house is a breach of privi- deration of these proceedings, which had lege," but it was not adopted by the been carried or in spite of its resolutions, house. The actions proceeded in the and in the first place committed Stockregular course, and the Court of King's dale to the custody of the serjeant-at-arms. Bench sustained and vindicated the au- The sheriffs were desired to refund the thority of the house.

money, and, on their refusal, were also It has been already said that Stock- committed. Mr. Howard, the solicitor of dale's first action was brought when Mr. Stockdale, was suffered to escape parliament was not sitting. Having with a reprimand. The sheriffs retained no specific directions from the house, possession of the money until an attachMessrs. Hansard pleaded to the action. ment was issued from the Queen's Bench, On the general issue they proved the when they paid it over to Stockdale. orders of the house, which were held to Stockdale, while in prison, commenced a be no protection, but had judgment upon fourth action by the same solicitor, and a plea which would have availed them with him was committed to Newgate for equally had they printed the report com- the offence; and Messrs. Hansard were plained of on their own account. Not again ordered not to plead ce more withstanding its resolutions, the house, judgment was entered up ugainst them, on being acquainted with this action, in- and a writ of inquiry of da nages issued. stead of acting upon them when a second Mr. France, the under sheriff, upon was commenced, reverted to the prece- whom the execution of this writ 'dedent of 1810, and directed Messrs. Han. volved, having been served with the sard to plead, and the attorney-general resolutions of the commons, expressed, to defend them. In this case nothing by petition, his anxiety to pay obedience but the privileges of the House of Com- | to them, and sought the protection of VOL. IL

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the house. He then obtained leave to which does not stay the actions. If show cause before the court of Queen's parliament were to act strictly upon its Bench on the fourth day of Easter term own declarations, it would be forced to why the writ of inquiry should not be commit not only the parties, but their executed. Meanwhile the imprisonment counsel and their attorneys, the judges of the plaintiff and his attorney did not and the sheriffs; and so great would be prevent the prosecution of further actions. the injustice of punishing the public Mr. Howard's son, and his clerk, Mr. officers of justice for administering the Pearce, having been concerned in con- law according to their consciences and ducting such actions, were committed for oaths, that parliament would shrink from the contempt, and Messrs. Hansard, as so violent an exertion of privilege. And before, were instructed not to plead. At again, the intermediate course adopted in length, as there appeared to be no pro- the case of Stockdale v. Hansard, of cobability of these vexatious actions being ercing the sheriff for executing the judgdiscontinued, a bill was introduced into ment of the court, and allowing the the commons and passed, by which pro- judges who gave the obnoxious judgment ceedings, criminal or civil, against per- to pass without censure, is inconsistent in sons for publication of papers printed by principle, and betrays hesitation on the order of either house of parliament, are part of the house, distrust of its own auto be stayed by the courts, upon delivery thority, or fear of public opinion” (p. 129, of a certificate and affidavit to the effect | 130). that such publication is by order of parliament. (Act 3 & 4 Vict. c. 9.)

Forms of Procedure. In executing the Speaker's warrant for Meeting of Parliament: Preliminary taking Mr. Howard into custody, the mes. Proceedings.--On the meeting of a new sengers had remained some time in his parliament it is the practice for the lord house, for which he brought an action of chancellor, with other peers appointed by trespass against them. As it was possible commission under the great seal for that that they might have exceeded their au- purpose, to open the parliament by stating thority, and as the right of the house of *s that her Majesty will, as soon as the commit was not directly brought into members of both houses shall be sworn, question, the defendants were, in this declare the causes of her calling this case, instructed to plead ; although a parliament; and it being necessary a clause for staying further proceedings in Speaker of the house of commons should the aetion was contained in the bill which be first chosen, that you, gentlemen of the was pending, at that time, in the house house of commons, repair to the place of lords; by whom however it was after where you are to sit, and there proceed wards omitted : and the house of com- to the appointment of some proper person mons is still involved in litigation on ac- to be your Speaker ; and that you present count of the exercise of its privileges. such person whom you shall so choose

Mr. May remarks ( Law, Privileges, here, to-morrow (at an hour stated) for &c. of Parliament') that " The present her Majesty's royal approbation.” The position of privilege is, in the high- commons then proceed at once to the est degree, unsatisfactory. Assertions | election of their Speaker. If any debate of privilege are made in parliament, arises, the clerk at the table acts as and denied in the courts; the officers who Speaker, and standing up, points to the execute the orders of parliament are members as they rise. He also puts the liable to vexatious actions, and if verdicts question. When the speaker is chosen, are obtained against them, the damages his proposer and seconder conduct him and costs are paid by the Treasury to the chair, where, standing on the

The parties who bring such actions, in- upper step, he thanks the house and takes stead of being prevented from proceeding his seat. It is usual for some members with them by some legal process acknow- to congratulate him when he has taken ledged by the courts, can only be coerced the chair. As yet he is only Speaker by an unpopular exercise of privilege, / elect, and as such presents himself on the

following day in the house of lords, dress in answer to the speech from the when it has been customary for him to throne. acquaint the lords commissioners that Before any business is undertaken, the choice of the commons has “fallen prayers are read; in the house of lords upon him," that he feels the difficulties of by a bishop, and in the commons by his high and arduous office, and that, “if their chaplain. The lords usually meet at it should be her Majesty's pleasure to five o'clock in the afternoon, the commons disapprove of this choice, her majesty's at four. faithful commons will at once select some Conduct of Business, Divisions, &c.-In other member of their house better quali- the house of lords business may proceed fied to fill the station than himself.” It when three peers are present, but forty is stated by Hatsell, that there have been members are required to assist in the only two instances “ in which neither this deliberations of the lower house. If that form, of having the royal permission to number be not present at four o'clock in proceed to the election of a Speaker, nor the afternoon, or if notice be taken, or the other, of the king's approbation of if it appear on a division, that less than the person elected, have been observed. that number are present, the Speaker The first is the election of Sir Harbottle adjourns the house until the next sitting Grimstone, on the 25th of April, 1660, day. In both houses all questions are to be Speaker of the Convention Parlia- decided by a majority, but in the lords ment which met at the Restoration; the proxies are counted, while in the comother is the election of Mr. Powle, 22nd mons none may vote but those present January, 1688-9, in the Convention Par- in the house when the question is put by liament at the Revolution.” The only the Speaker or chairman. When any instance of the royal approbation being question arises upon which a difference refused is in the case of Sir Edward of opinion is expressed, it becomes neSeymour in 1678. Sir John Topham cessary to ascertain the numbers on each indeed was chosen Speaker in 1450, but side. In the lords, the party in favour his excuse was admitted by the king, and of the question are called “content," and another was chosen by the commons in that opposed to it“ not-content.” In the his place. In order to avoid a similar commons these parties are described as proceeding on the part of the king, Sir the “ayes” and “noes.” When the Edward Seymour, who knew that it had Speaker cannot decide by the voices been deterinined to accept his excuse, which party has the majority, or when omitted the usual form. Of late years his decision is disputed, a division takes the speaker's address, npon this occasion, place. This is effected in the lords by, has been very considerably modified. sending the " contents” or “noncontents," (See May's • Parliament,' p. 137 ) as the case may be, to the other side of

When the Speaker has been approved, the bar, and leaving one party in the he lays claim on behalf of the commons, house. Each party is thus counted se* by humble petition, to all their ancient parately. The practice in the other and undoubted rights and privileges," house, until 1836, was to send one party which being confirmed, the Speaker with forth into the lobby, the other remaining the commons retires from the bar of in the house. Two tellers for each party the bouse of lords.

then counted the numbers, and reported Both houses then proceed to take the them. In 1836 it was thought advisable oaths required by law. In the commons to adopt some mode of recording the the Speaker takes them before any other names of members who voted, and for member. Three or four days are usually this purpose several contrivances were occupied in this duty before the queen proposed. The one adopted and now in declares to both houses, in person or by operation is this :- There are two lobbies, commission, the causes of calling the par- one at each end of the house ; and on a liament. From this time business pro- division the house is entirely cleared, one ceeds regularly. The first thing usually party being sent to each of the lobbies. done in both houses is to vote an ad- Two clerks are stationed at each of the

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