Sir William Gosset against Howard
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Exchequer |
English Reports Citation: 116 E.R. 158
IN THE EXCHEQUER CHAMBER.
sir william gosset agctinst howard. 1845. For note, see p. 359, ante. Damages having been assessed (May 27th, 1845) at 2001. over and above costs, &c., and judgment signed, in the above case, the defendant below brought a writ of error in the Exchequer Chamber, assigning error in the common form. Joinder. The writ of error was argued in Trinity vacation (a)2 and Michaelmas vacation (b) 1846. [412] Sir F. Thesiger, Attorney General, for the plaintiff in error (defendant below), after comparing and observing upon the several judgments delivered in the Queen's Bench, argued, as to the case itself, as follows. First: the Act in question appearing to have been done by order of the House of Commons, that order is a complete justification to the officer, and a perfect answer to (a)1 Stat. 7 & 8 G. 4, c. 30, s. 39. (a)2 June 13th and 15th. Before Tindal C.J., Coltman, Maule, and Cresswell Js., and Parke, Alderson, and Rolfe Bs. (5) November 30th and December 1st. Before Coltman, Maule, and Cresswell Js., and Parke, Alderson, and Rolfe Bs, 10 J. B. 3. GOSSET V. HOWARD 159 the action. This point, though it could not be urged in the Queen'a Bench, may be argued before this Court, which has not yet had it under consideration. (The argument on this subject is omitted, the Court of Error not having given any decision on the point. The authorities cited were for the moat part the same as those collected in StocMale v. Hansard (9 A. & E. 1); the only additional ones being stat. 3 & 4 Viet, c. 9, s. 1 (recital); Co. Litt. 127 b., and note (1) to Foxwist v. Tremaine (2 Wms. Saund. 209), as to- the form of pleading in Jay v. Topham(c); Ferdm v. Deaele (2 Show. 300), and the pleadings in the same case as set out in Brownl. Ent. 129 (s).) [Maule J. [413] You contend that the order, even if there had been no warrant, would have been a justification.] It would. In former times no warrant would have been issued (a); and here none would have been necessary, if the House had not directed the Speaker to issue one. Then, Secondly : the warrant, at all events, was a justification, having issued by order of the House; for the officer is bound to execute all orders and warrants of the House where no defect of jurisdiction appears on the face of them ; and here no such defect appears, and the warrant is alleged in the pleas to have been issued according to the usages and privileges of the House and the law and custom of Parliament, which fact is admitted by the demurrer. And the Court cannot go into any further inquiry. This position rests upon the same authorities as those cited under the first head of the argument. Thirdly: assuming that the authority is to be enquired into, the proceedings of the House in this case were in pursuance of its ancient usages and privileges, and agreeable to the law and custom of Parliament. On the judgments delivered in the Court below it is perhaps left doubtful whether this is admitted by the demurrer, at least to the extent of acknowledging that the warrant itself was framed according to those privileges, and to that law and custom. But it is clear upon authority that the powers claimed by the several pleas are inherent in the House, and essential to the proper discharge of its functions: and, up to the is-[414]-suing of a warrant, this is admitted in the judgments of Lord Denman C.J. and Coleridge J. (ante, pp. 379, 380, 404), in the Court below. The authority of the Commons, as " the general inquisitors of the realm," to set on foot examinations, is asserted in 4 lust. 11, 24. In Burdett v. Abbot (14 East, 1, 138), Lord Ellenborough, speaking of the House of Commons, says that, "independently" "of any precedents or recognized practice on the subject, such a body must & priori be armed with a competent authority to enforce the free and independent exercise of its own proper functions, whatever those functions might be." In StofJcdale v. Hansard (9 A. & E. 115), Lord Denraan C.J. said : "The Commons of England are not invested with more of power and dignity by their legislative character than by that which they bear as the grand inquest of the nation. All the privileges that can be required for the energetic discharge of the duties inherent in that high trust are conceded without a murmur or a doubt." Littledale J. added (9 A. & E. 168); "There is no doubt about the right as exercised by the two Houses of Parliament with regard to contempts or insults offered to the House, either within or without their walls; there is no doubt either as to the freedom of their members (c) 14 East, 102, note (a) to Burdett v. Abbot. (e) Alderson B. asked, with reference to this head of the argument, whether the order of the House would be conclusive if they directed that a person should be put to death. The Attorney General answered, that he should decline arguing upon any extreme and extravagant case. [Alderson B. It may not be necessary for you, because the course of precedent which you rely upon may have extended as far as the case of contempt, though not farther; not, for instance, to the turning a man out of his freehold.] The supposition of an extreme abuse might be urged against the jurisdiction, however undeniable, of any Court. [Alderson B. There is a difference between abusing known powers and assuming unknown ones.] If a House of Parliament assumed such powers, the question raised would be a constitutional, not a legal one. There is no legal redress against the House, more than against the Sovereign herself, if she inflicted a personal injury. [Alderson B. But it does not follow that, if an officer were employed, the officer of the Sovereign or of the House would be protected. Your best answer is, that the authorities do extend to the case for which you require them, and you do not want more. Tindal C.J. That is your best answer.] (q) See p. 370, note (a), ante. 160 QOSSET V. HOWARD 10Q.B.415. from arrest, or of their right to summon witnesses to require the production of papers and records, and the right of printing documents for the use of the members of the constituent body; and as to any other thing which may appear to be necessary to carry on and conduct the great and important functions of their charge." Patteson J. (9 A. & E. pp. 209, 210, 213), recognized the right of the [415] House to protect iUelf by summary proceedings against obstruction, and said also (in answer to an argument for the defendant): "The House is armed with ample powers to send for all persons who can give them information either before a committee, or at the Bar of the House." Fourthly : if the House of Commons was acting in the regular course and exercise of iti constitutional functions, the question remains, whether the proceeding by which the House carried out its object was regular and formal or not. But, on the assumption now made as to jurisdiction, the Court of Queen's Bench could not enquire whether the warrant was in such a form as this Court might deem valid. Some observations of tbe learned Judges on this point in Howard v. Gosset (ante, p. 359), are at variance with many authorities, from the case of The Earl of Shaftesbury (6 How. St. Tr. 1269), downwards. Coleridge J. (ante, pp. 380, 381), after noticing the argument "that, with regard to the transcendent powers of the House, and its identity with the people at large, and out of respect to its great dignity, the warrants which it issues are not to be dealt with as those which proceed from tribunals co-ordinate with ourselves, or inferior," said: "I cannot admit that the degree of strictness in which formal accuracy is to be required in warrants has been measured, or ought to be, by the dignity of the Courts from which they issue. Experience has shewn that the liberty of the subject, with which we are entrusted, is involved in the accuracy in point of form of legal proceedings. For that reason accuracy is required : and in that view of it it is no paradox to say that form be-[416]-comes substance. The more powerful, therefore, the source, and the higher in point of rank, the more strictness ought we to shew, the more accuracy may reasonably be required. From the wide extent of jurisdiction, indeed, in the one case, and its narrowness in the other, a different rule of intendment exists: but, with this qualification, the rule is as I have slated." "It is trifling with language to speak of the present warrant as defective in form only. If the House cannot arrest of its own mere pleasure and without cause, to omit to state any cause, and to rely on its mere pleasure, is to proceed with one essential of the jurisdiction absent." And Lord Denman C.J. said (ante, p. 409): "I apprehend that the goodness of a warrant in respect of its contents is wholly independent of the authority from which it proceeds. However dignified and powerful the body which sends forth process, that process must be consistent with itself and with the law, in order to defend the officer who acts upon it. There i no disrespect to the high assembly with which this matter originated in applying the same rules of construction to the instruments by which it acts as to those that may be issued by an ordinary justice of the peace." His Lordship also (ante, p. 408), cited the dictum that " the cause of commitment ought to be certainly stated, to the end that the party may know for what he suffers, and how he may regain his liberty." But the Court of Queen's Bench itself, very lately, in the case of The Sheriff of Middlesex (11 A. & E. 273), held a warrant of commitment by tbe House of Commons for a contempt to be valid, though it did not shew what the contempt was, and the term of imprisonment stated was only "during the [417] pleasure of this House ;" on which grounds the warrant of a justice of peace or of an Inferior Court would have been deemed void ; Rex v. James (5 B. & Aid. 894), Ex parte Besset...
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