Actions stayed by such actions should be stayed on the production of. a certificate or affidavit, that any paper, statute. the subject of an action, was printed by order of either House of Parliament.1 Such an intervention of the supreme authority of Parliament, two years before, would have averted differences between concurrent jurisdictions, which no other power was competent to reconcile. No course was open to the Commons,-befitting their high jurisdiction and dignity,-by which the obedience of courts and plaintiffs could be ensured: their power of commitment was at once impotent, and oppressive: yet they could not suffer their authority to be wholly defied and contemned. Hence their proceedings were inevitably marked by hesitation and inconsistency. In a case, for which the constitution has made no provision, even the wisdom of Sir Robert Peel, and the solid learning of Mr. Sergeant Wilde, were unequal to devise expedients less open to objection.2 Another occasion immediately arose for further forbearance. Howard commenced an action Gosset. of trespass against the officers of the House, who had taken him into custody. As it was possible that, in executing the Speaker's warrant, they might have exceeded their authority, the action was suffered to take its course. On the trial, it appeared that they had remained some time in the plaintiff's house, after they had ascertained that he was from home; and on that ground, a verdict was obtained against them for 100l. Howard brought a second action. Case of Howard v. 13 & 4 Vict. c. 9. Papers reflecting upon private character are sometimes printed for the use of members only. 2 Proceedings printed by the Commons, 1839 (283); Report of Precedents, 1837; Hans. Deb., 1847-1849. against Sir W. Gosset, the Sergeant-at-Arms, in which he was also successful, on the ground of the informality of the Speaker's warrant. The Judges, however, took pains to show that their decision in no way impugned the authority of the House itself. The House, while it regarded this judgment as erroneous, could not but feel that its authority had been trifled with, in the spirit of narrow technicality, by an inferior court. Still moderation prevailed in its counsels; and, as the act of an officer, and not the authority of the House itself, was questioned, it was determined not to resist the execution of the judgment: but to test its legality by a writ of error. The judgment was reversed by the unanimous decision of the Court of Exchequer Chamber. As this last judgment was founded upon broader principles of law than those adopted by the court below, it is probable that, in Stockdale's case, a Court of Error would have shown greater respect to the privileges of the Commons, than the Court of Queen's Bench had thought fit to pay; and it is to be regretted that the circumstances were not such as to justify an appeal to a higher jurisdiction. power of the The increased power of the House of Commons, under an improved representation, has been Increased patent and indisputable. Responsible to Commons. the people, it has, at the same time, wielded the people's strength. No longer subservient to the crown, the ministers, and the peerage, it has become the predominant authority in the state. Their But it is characteristic of the British constitution, and a proof of its freedom from moderation since the increase of their power. the spirit of democracy, that the more dominant the power of the House of Commons,-the greater has been its respect for the law, and the more carefully have its acts been restrained within the proper limits of its own jurisdiction. While its authority was uncertain and ill-defined,-while it was struggling against the crown,-jealous of the House of Lords,distrustful of the press, and irresponsible to the people,—it was tempted to exceed its constitutional powers: but since its political position has been established, it has been less provoked to strain its jurisdiction; and deference to public opinion, and the experience of past errors, have taught it wisdom and moderation. Conduct of the Com mons in regard to Baron Rothschild, 1850. The proceedings of the House in regard to Wilkes, present an instructive contrast to its recent conduct in forwarding the admission of Jews to Parliament. In the former case, its own privileges were strained or abandoned at pleasure, and the laws of the land outraged, in order to exclude and persecute an obnoxious member.' How did this same powerful body act in the case of Baron de Rothschild and Mr. Salomons? Here the House,-faithful to the principles of religious liberty, which it had long upheld,-was earnest in its desire to admit these members to their place in the legislature. They had been lawfully chosen: they laboured under no legal disability; and they claimed the privileges of members. A few words in the oath of abjuration, alone prevented them from taking their seats. A large majority of the House was favourable to their claims: the law was doubtful; 1 See supra, p. 3, &c. and the precedent of Mr. Pease, a Quaker,-who had been allowed to omit these words,-was urged by considerable authorities, as a valid ground for their admission. Yet the House, dealing with the seats of its own members,-over which it has always had exclusive jurisdiction, and with every inducement to accept a broad and liberal interpretation of the law, nevertheless administered it strictly, and to the letter. For several years, the House had endeavoured to solve the difficulty by legislation. Its failures, however, did not tempt it to usurp legislative power, under the semblance of judicial interpretation. But it persevered in passing bills, in various forms, until it ultimately forced upon the other House an amendment of the law. of either the execu The limits within which Parliament, or either House, may constitutionally exercise a con- Control trol over the executive government, have House over been defined by usage, upon principles tive. consistent with a true distribution of powers, in a free state and limited monarchy. Parliament has no direct control over any single department of the state. It may order the production of papers, for its information:2 it may investigate the conduct of public officers; and may pronounce its opinion upon the manner in which every function of the government has been, or ought to be, discharged. But it cannot convey its orders or directions to the meanest executive officer, in relation to the performance of his duty. Its power over the executive is exercised 1 Hans. Deb., July 29th and 30th, and Aug. 5th, 1850; July 18th and 21st, 1851. See also Chap. XIII. 2 Many papers, however, can only be obtained by address to the Crown. indirectly, but not the less effectively,-through the responsible ministers of the crown. These ministers regulate the duties of every department of the state; and are responsible for their proper performance, to Parliament, as well as to the crown. If Parliament disapprove of any act, or policy of the government,-ministers must conform to its opinion, or forfeit its confidence. In this manner, the House of Commons, having become the dominant body in the legislature, has been able to direct the conduct of the government, and control its executive administration of public affairs, without exceeding its constitutional powers. It has a right to advise the crown,—even as to the exercise of prerogative itself; and should its advice be disregarded, it wields the power of impeachment, and holds the purse-strings of the state. It has controlled the exercise of of peace History abounds with examples, in which the exercise of prerogative has been controlled by Parliament. Even questions of peace prerogative. and war, which are peculiarly within the province of prerogative, have been resolved, again Questions and again, by the interposition of Parliament. From the reign of Edward III., Parliament has been consulted by the crown; and has freely offered its advice on questions of peace and war.1 The exercise of this right, so far from being a modern invasion of the royal prerogative, is an ancient constitutional usage. It was not, however, until the power of Parliament had and war. 1 E.g. Edw. III., Parl. Hist., i. 122; Henry VII., Ibid., 452; James I., Ibid., 1293; Queen Anne, Ibid., vi. 609. |