134. RECORDS OF JUDICIAL CASES (1832-76)
(A) Charge to the Bristol Grand Jury (1832)[1]
It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property. And although every single act of violence and each individual breach of the law tends to counteract and destroy this, its primary use and object, yet do general risings and tumultuous meetings of the people in a more especial and particular manner produce this effect — not only removing all security, both from the persons and property of men, but for the time putting down the law itself and daring to usurp its place. The law of England hath accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made ample provision for preventing such offences and for the prompt and effectual suppression of them whenever they arise; and I think it may not be unsuitable to the present occasion, if I proceed to call your attention, with some degree of detail, to the various provisions of the law for carrying that purpose into effect.
In the first place, by the common law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall see coming up from joining the rest. And not only has he the authority, but it is his bounden duty as a good subject of the king, to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evil-doers to keep the peace.... If the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself and upon his own responsibility in suppressing a riotous and tumultuous assembly; and he may be assured that whatever is honestly done by him in the execution of that object will be supported and justified by the common law. And whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to observe that the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation and invested with the same authority to preserve the peace of the king as any other subject....
Still further, by the common law, not only is each private subject bound to exert himself to the utmost, but every sheriff, constable, and other peace officer is called upon to do all that in them lies for the suppression of riot, and each has authority to command all other subjects of the king to assist them in that undertaking.... And here I most distinctly observe that it is not left to the choice or will of the subject, as some have erroneously supposed, to attend or not to the call of the magistrate as they think proper; but every man is bound when called upon, under pain of fine and imprisonment, to yield a ready and implicit obedience to the call of the magistrate, and to do his utmost in assisting him to suppress any tumultuous assembly....
In later times the course has been for the magistrate, on occasions of actual riot and confusion, to call in the aid of such persons as he thought necessary, and to swear them as special constables.... Again, that this call of the magistrate is compulsory, and not left to the choice of the party to obey or not, appears from the express enactment ... that, if he disobeys, unless legally exempted, he is liable to the penalties and punishments therein specified. But the most important provision of the law for the suppression of riots is to be found in the statute I George I, st. 2, c. 5, by which it is enacted....[2]
Such are the different provisions of the law of England for the putting down of tumultuary meetings; and it is not too much to affirm that, if the means provided by the law are promptly and judiciously enforced by the magistrate and honestly seconded by the co-operation of his fellow subjects, very few and rare would be the instances in which tumultuous assemblages of the people would be able to hold defiance to the laws.
Carrington and Payne, Reports, V, 556 note.
(B) Stockdale v. Hansard (1839)[3]
Lord Denman, C. J.: This was an action for a publication defaming the plaintiff's character by imputing that he had published an obscene libel. The plea was that the inspectors of prisons made a report to the secretary of state, in which improper books were said to be permitted in the prison of Newgate; that the court of aldermen wrote an answer to that part of the report and the inspectors replied, repeating the statements and adding that the improper books were published by the plaintiff; that all these documents were printed by and under orders from the house of commons....
The plea, it is contended, establishes a good defence to the action on various grounds. (1) The grievance complained of appears to be an act done by order of the house of commons, a court superior to any court of law, and none of whose proceedings are to be questioned in any way.... It is a claim for an arbitrary power to authorize the commission of any act whatever on behalf of a body which in the same argument is admitted not to be the supreme power in the state. The supremacy of parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it; because the house of commons is not the parliament, but only a coordinate and component part of the parliament. That sovereign power can make and unmake the laws, but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law or place any one beyond its control. The proposition is therefore wholly untenable and abhorrent to the first principles of the constitution of England.
(2) The next defence involved in this plea is that the defendant committed the grievance by order of the house of commons in a case of privilege, and that each house of parliament is the sole judge of its own privileges. This last proposition requires to be first considered. For, if the attorney general was right in contending — as he did more than once in express terms — that the house of commons, by claiming anything as its privilege, thereby makes it a matter of privilege, and also that its own decision upon its own claim is binding and conclusive, then plainly this court cannot proceed in any inquiry into the matter, and has nothing else to do but declare the claim well founded because it has been made.
This is the form in which I understand the committee of a late house of commons to have asserted the privileges of both houses of parliament; and we are informed that a large majority of that house adopted the assertion. It is not without the utmost respect and deference that I proceed to examine what has been promulgated by such high authority; most willingly would I decline to enter upon an inquiry which may lead to my differing from that great and powerful assembly. But, when one of my fellow subjects presents himself before me in this court, demanding justice for an injury, it is not at all at my option to grant or withhold redress; I am bound to afford it if the law declares him entitled to it. I must then ascertain how the law stands, and, whatever defence may be made for the wrongdoer, I must examine its validity. The learned counsel for the defendant contends for his legal right to be protected against all consequences of acting under an order issued by the house of commons in conformity with what that house asserts to be its privilege; nor can I avoid, then, the question whether the defendant possesses that legal right or not....[4]
In truth, no practical difference can be drawn between the right to sanction all things under the name of privilege and the right to sanction all things whatever by merely ordering them to be done. The second proposition differs from the first in words only. In both cases the law would be superseded by one assembly; and, however dignified and respectable that body, in whatever degree superior to all temptations of abusing their power, the power claimed is arbitrary and irresponsible, in itself the most monstrous and intolerable of all abuses....
(3) I come at length to consider whether this privilege of publication exists. The plea states the resolution of the house that all parliamentary reports printed for the use of the house should be sold to the public and that these several papers were ordered to be printed, not however stating that they were printed for the use of the house.... The difference between the extent of publication formerly practised and the uncontrolled sale of all that the house may choose to print in order to raise a fund for paying its officers cannot fail to strike every unbiased understanding. I must add that the evidence on this subject set forth in the report convinces me that publication has never been by way of exercising any of its privileges, nor the fruit of deliberation to what extent it ought to be carried and within what bounds restrained. With very different objects the practice was originally introduced; it grew imperceptibly into a perquisite; and I venture to believe that it was raised into a traffic and a means of levying money without much consideration....
I am of opinion, upon the whole case, that the defence pleaded is no defence in law, and that our judgment must be for the plain-tiff....
Patteson, J.: ... It is further argued that the courts of law are inferior courts to the court of parliament and to the court of the house of commons, and cannot form any judgment as to the acts and resolutions of their superiors. I admit fully that the court of parliament is superior to the courts of law, and in that sense they are inferior courts; but the house of commons by itself is not the court of parliament. Further, I admit that the house of commons, being one branch of the legislature to which legislature belongs the making of laws, is superior in dignity to the courts of law, to whom it belongs to carry those laws into effect and, in so doing, of necessity to interpret and ascertain the meaning of those laws. It is superior also in this, that it is the grand inquest of the nation and may inquire into all alleged abuses and misconduct in any quarter ...; but it cannot, by itself, correct or punish any such abuses or misconduct. It can but accuse or institute proceedings against the supposed delinquents in some court of law or, conjointly with the other branches of the legislature, may remedy the mischief by a new law. With respect to the interpretation and declaration of what is the existing law the house of lords is doubtless a superior court to the courts of law And those courts are bound by a decision of the house of lords expressed judicially upon a writ of error or appeal in a regular action at law or suit in equity. But I deny that a mere resolution of the house of lords, or even a decision of that house in a suit originally brought there — if any such thing should occur, which it never will, though formerly attempted — would be binding upon the courts of law, even if it were accompanied by a resolution that they had power to entertain original suits. Much less can a resolution of the house of commons, which is not a court of judicature for the decision of any question either of law or fact between litigant parties except in regard to the election of its members, be binding upon the courts of law. And it should be observed that, in making this resolution, the house of commons was not acting as a court either legislative, judicial, or inquisitorial, or of any other description....
Upon the whole, the true doctrine appears to me to be this: that every court in which an action is brought upon a subject matter generally and prima facie within its jurisdiction, and in which by the course of the proceedings in that action the powers and privileges and jurisdiction of another court come into question, must of necessity determine as to the extent of those powers, privileges, and jurisdiction; that the decisions of that court whose powers, privileges, and jurisdiction are so brought into question, as to their extent, are authorities and, if I may so say, evidences in law upon the subject but not conclusive. In the present case, therefore, both upon principle and authority, I conceive that this court is not precluded by the resolution of the house of commons of May, 1837, from inquiring into the legality of the act complained of, although we are bound to treat that resolution with all possible respect, and not by any means to come to a decision contrary to that resolution unless we find ourselves compelled to do so by the law of the land, gathered from the principles of the common law, so far as they are applicable to the case, and from the authority of decided cases and the judgments of our predecessors, if any be found which bear upon the question....
Privileges — that is, immunities and safeguards — are necessary for the protection of the house of commons in the exercise of its high functions. All the subjects of this realm have derived, are deriving, and I trust and believe will continue to derive, the greatest benefits from the exercise of those functions. All persons ought to be very tender in preserving to the house all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing. It is to be regarded, not with tenderness, but with jealousy; and, unless the legality of it be most clearly established, those who act under it must be answerable for the consequences. The onus of showing the existence and legality of the power now claimed lies upon the defendants. It appears to me, after a full and anxious consideration of the reasons and authorities adduced by the attorney general in his learned argument, and after much reflection upon the subject, that they have entirely failed to do so. And I am therefore of opinion that the plaintiff is entitled to our judgment in his favour.
Adolphus and Ellis, Reports, IX, 78-214.
(C) The Case of the Sheriff of Middlesex (1840)[5]
The only question upon the present return is whether the commitment is sustained by a legal warrant. Three objections have been taken to the warrant in point of form merely.... The verbal criticisms therefore fall to the ground. The great objection remains behind, that the facts which constitute the alleged contempt are not shown by the warrant....
It is unnecessary to discuss the question whether each house of parliament be or be not a court; it is clear that they cannot exercise their proper functions without the power of protecting themselves against interference.... And we must presume that what any court, much more what either house of parliament, acting on great legal authority, takes upon it to pronounce a contempt is so.... On the motion for a habeas corpus there must be an affidavit from the party applying; but the return, if it discloses a sufficient answer, puts an end to the case. And I think the production of a good warrant is a sufficient answer. Seeing that, we cannot go into the question of contempt on affidavit nor discuss the motives which may be alleged. Indeed, as the courts have said in some of the cases, it would be unseemly to suspect that a body, acting under such sanctions as a house of parliament, would in making its warrant suppress facts which, if discussed, might entitle the person committed to his liberty. If they ever did act so, I am persuaded that, on further consideration, they would repudiate such a course of proceeding....
In the present case I am obliged to say that I find no authority under which we are entitled to discharge these gentlemen[6] from their imprisonment.
Ibid., XI, 287-92.
The main question for our decision is whether a faithful report in a public newspaper of a debate in either house of parliament, containing matter disparaging to the character of an individual, as having been spoken in the course of the debate, is actionable at the suit of the party whose character has thus been called in question. We are of opinion that it is not.
Important as the question is, it comes now for the first time before a court of law for decision. Numerous as are the instances in which the conduct and character of individuals have been called in question in parliament during the many years that parliamentary debates have been reported in the public journals, this is the first instance in which an action of libel founded on a report of a parliamentary debate has come before a court of law. There is, therefore, a total absence of direct authority to guide us.... Decided cases thus leaving us without authority on which to proceed in the present instance, we must have recourse to principle in order to arrive at a solution of the question before us, and fortunately we have not far to seek before we find principles in our opinion applicable to the case, and which will afford a safe and sure foundation for our judgment.
It is now well established that faithful and fair reports of the proceedings of courts of justice, though the character of individuals may incidentally suffer, are privileged, and that for the publication of such reports the publishers are neither criminally nor civilly responsible. The immunity thus afforded in respect of the publication of the proceedings of courts of justice rests upon a twofold ground. In the English law of libel, malice is said to be the gist of an action for defamation.... It is thus that in the case of reports of proceedings of courts of justice, though individuals may occasionally suffer from them, yet, as they are published without any reference to the individuals concerned, but solely to afford information to the public and for the benefit of society, the presumption of malice is rebutted and such publications are held to be privileged. The other and the broader principle on which this exception to the general law of libel is founded is that the advantage to the community from publicity being given to the proceedings of courts of justice is so great that the occasional inconvenience to individuals arising from it must yield to the general good ...
Both the principles on which the exemption from legal consequences is thus extended to the publication of the proceedings of courts of justice appear to us to be applicable to the case before us.... It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done the welfare of the community depends. Where would be our confidence in the government of the country ... where would be our attachment to the constitution under which we live — if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation? How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on if the constituencies were kept in ignorance of what their representatives are doing? What would become of the right of petitioning on all measures pending in parliament, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing in either house? Can any man bring himself to doubt that the publicity given in modern times to what passes in parliament is essential to the maintenance of the relations subsisting between the government, the legislature, and the country at large? It may, no doubt, be said that, while it may be necessary as a matter of national interest that the proceedings of parliament should in general be made public, yet that debates in which the character of individuals is brought into question ought to be suppressed. But to this, in addition to the difficulty in which parties publishing parliamentary reports would be placed, if this distinction were to be enforced and every debate had to be critically scanned to see whether it contained defamatory matter, it may be further answered that there is perhaps no subject in which the public have a deeper interest than in all that relates to the conduct of public servants of the state — no subject of parliamentary discussion which more requires to be made known than an inquiry relating to it. Of this no better illustration could possibly be given than is afforded by the case before us. A distinguished counsel (Sir Fitzroy Kelly), whose qualification for the judicial bench had been abundantly tested by a long career of forensic eminence, is promoted to a high judicial office, and the profession and the public are satisfied that in a most important post the services of a most competent and valuable public servant have been secured. An individual comes forward and calls upon the house of lords to take measures for removing the judge, in all other respects so well qualified for his office, by reason that on an important occasion he had exhibited so total a disregard of truth as to render him unfit to fill an office for which a sense of the solemn obligations of truth and honour is an essential qualification. Can it be said that such a subject is not one in which the public has a deep interest, and as to which it ought not to be informed of what passes in debate? Lastly, what greater anomaly or more flagrant injustice could present itself than that, while from a sense of the importance of giving publicity to their proceedings, the houses of parliament not only sanction the reporting of their debates, but also take measures for giving facility to those who report them, while every member of the educated portion of the community from the highest to the lowest looks with eager interest to the debates of either house, and considers it a part of the duty of the public journals to furnish an account of what passes there, we were to hold that a party publishing a parliamentary debate is to be held liable to legal proceedings because the conduct of a particular individual may happen to be called in question? ...
Whatever disadvantages attach to a system of unwritten law — and of these we are fully sensible — it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society ... , so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has, in many respects, only gradually developed itself into anything like a satisfactory and settled form. The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. Comments on government, on ministers and officers of state, on members of both houses of parliament, on judges and other public functionaries, are now made every day, which half a century ago would have ... brought down fine and imprisonment on publishers and authors.... Again, the recognition of the right to publish the proceedings of courts of justice has been of modern growth. Till a comparatively recent time the sanction of the judges was thought necessary even for the publication of the decisions of the courts upon points of law....
It is to be observed that, the analogy between the case of reports of proceedings of courts of justice and those of proceedings in parliament being complete, all the limitations placed on the one to prevent injustice to individuals will necessarily attach on the other. A garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection.
It only remains to advert to an argument urged against the legality of the publication of parliamentary proceedings: namely, that such publication is illegal as being in contravention of the standing orders of both houses of parliament. The fact no doubt is that each house of parliament does, by its standing orders, prohibit the publication of its debates. But practically each house not only permits but also sanctions and encourages the publication of its proceedings, and actually gives every facility to those who report them. Individual members correct their speeches for publication in Hansard or the public journals, and in every debate reports of former speeches contained therein are constantly referred to. Collectively, as well as individually, the members of both houses would deplore as a national misfortune the withholding their debates from the country at large. Practically speaking, therefore, it is idle to say that the publication of parliamentary proceedings is prohibited by parliament. The standing orders which prohibit it are obviously maintained only to give to each house the control over the publication of its proceedings, and the power of preventing or correcting any abuse of the facility afforded. Independently of the orders of the houses, there is nothing unlawful in publishing reports of parliamentary proceedings. Practically, such publication is sanctioned by parliament; it is essential to the working of our parliamentary system and to the welfare of the nation. Any argument founded on its alleged illegality appears to us, therefore, entirely to fail....
Law Reports, Queen's Bench, IV, 73 f.
(E) Rustomjee v. the Queen (l876)[8]
The making of peace and the making of war, as they are the undoubted, so they are perhaps the highest, acts of the prerogative of the crown. The terms on which peace is made are in the absolute discretion of the sovereign. If Captain Elliot did ... promise that the queen would compel the Chinese government to pay these claims when terms of peace were arranged, if Sir Henry Pottinger did promise that these claims should be insisted on and should be paid, they both exceeded their authority and promised what they had no power to perform or to pledge the queen to perform. The queen might or not, as she thought fit, have made peace at all; she might or not, as she thought fit, have insisted on this money being paid her. She acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character and by her own inherent authority; and as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts. It is a treaty between herself as sovereign, and the emperor of China as sovereign; and though he might complain of the infraction, if infraction there were, of its provisions, her subjects cannot. We do not say that under no circumstances can the crown be a trustee; we do not even say that under no circumstances can the crown be an agent; but it seems clear to us that in all that relates to the making and performance of a treaty with another sovereign the crown is not, and cannot be, either a trustee or an agent for any subject whatever.
We do not, indeed, doubt that, on the payment of the money by the emperor of China, there was a duty on the part of the English sovereign to administer the money so received according to the stipulations of the treaty. But it was a duty to do justice to her subjects according to the advice of her responsible ministers; not the duty of an agent ... or of a trustee.... If there has been a failure to perform that duty, which we only suggest for the sake of argument, it is one which parliament can and will correct; not one with which the courts of law can deal....
Law Reports, Queen's Bench Division, II, 73 f.
[1] On the occasion of the reform bill serious rioting had broken out at Bristol, and to try persons arrested in that connection a special commission had been set up by the government. As head of the commission, Chief Justice Tindal gave the following charge to the local grand jury.
[2] No. 122A.
[3] This was a suit brought in the court of queen's bench by Stockdale, a publisher, against James Hansard and others, a firm which had been employed by the house of commons to print various papers. Among the latter was a report of certain prison commissioners, declaring that a book published by Stockdale, though purporting to be of a scientific nature, was indecent and obscene. The principal issues in the case are reviewed in the opinions of Chief Justice Denman and Judge Patteson, which in part follow. The court ruled for the plaintiff.
[4] The chief justice here enters into a long consideration of cases involving parliamentary privilege in the past, including the Aylesbury election cases (no. 124C, D).
[5] As a consequence of the judgment in Stockdale v. Hansard (the case preceding), the sheriff of Middlesex sought to execute a writ whereby Stockdale might collect the damages awarded by the court. The house of commons then issued a warrant ordering the imprisonment of the sheriff, "as having been guilty of a contempt and breach of the privileges of this house." The legality of the imprisonment came before the court of queen's bench through habeas corpus proceedings on behalf of the sheriff. The judgment, as delivered by Chief Justice Denman, in part follows.
[6] Two men holding the one office of sheriff.
[7] In the course of a debate in the house of lords over the presentation of a petition, Lord Derby, the prime minister, declared the petition was "slanderous, calumnious, and unfounded." Walter printed an accurate account of the debate in the London Times, together with editorial comment upon it. Thereupon Wason, the author of the petition, sued Walter for libel. In the ensuing trial the jury rendered a verdict for Walter, and Wason then sought an order for a new trial from the court of queen's bench. This the court refused, on the grounds stated by Chief Justice Cockburn in the following judgment.
[8] The plaintiff asserted that a Chinese firm had owed him a large sum of money; that the justice of this claim had been recognized by agents of the English government; that, by a treaty made between the queen of England and the emperor of China, $3,000,000 had been paid by the latter to meet the claims of such merchants as were then owed money by Chinese; and that, accordingly, he was entitled to reimbursement by the queen. The case was taken from the court of queen's bench to the court of appeal. The following excerpt is from the judgment delivered by Chief Justice Coleridge.