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It was gratifying to us as lawyers, and still more as vers of the English Constitution, to hear the judgment unced by the Court of Queen's Bench the other day in the case of Howard v. Gossett. It was one of those striking assertions of the power of the law, and its ability to protect the liberties of Englishmen, of which Our history affords so many examples, and the contemplation of which makes us justly regard our country as deserving the name of the land of freedom. The most powerful body in the kingdom, before whose prerogatives our sovereigns have often been obliged to yield, was, in the person of its officer, brought before one of the ordinary courts of justice, and its proceedings were examined and subjected to the same severe tests as are applied to the acts of the meanest tribunal. The law, careful of the subject's liberty, was arrayed against a prerogative which sought to destroy it, and, thanks to the excellence of our judicial institutions, an excellence which they owe mainly to the force of public opinion,-the law prevailed. For the judges know very well that the country will support them when they decide according to justice; and, strong in that support, they can disregard the power even of the House of order and resolution, and in pursuance of, and according to, the ancient usages and privileges of the House, and the law and custom of Parliament, by his warrant in that behalf duly made, (which warrant recited the order of the House), did require and authorise the serjeant-at-arms to take into custody the body of the plaintiff, which warrant was delivered by the Speaker to the serjeant, and by him executed in due form of law, in virtue and execution of which warrant the defendant arrested the plaintiff, and imprisoned him until he could bring him before the House. The sufficiency of this justification was argued some time ago before the judges of the Queen's Bench, three of whom, Lord Denman, Coleridge, and Wightman, JJ., have pronounced it insufficient; the fourth, Williams, J., being dissentient, and holding it to be a good justification. The judgment of Justice Wightman, although it was in favour of the plaintiff, yet proceeded upon grounds of so technical a nature, and so, as it seems to us, unbefitting the decision of a great constitutional question, that we cannot regard it with approbation. That learned judge, studiously avoiding any discussion of the great question which had been raised in the argument, held, that the warrant was not a sufficient justification, because it simply directed the serjeant-at-arms to take the plaintiff into custody, and did not direct him to bring him before the House, or to The case of Howard v. Gossett was this: Howard take him into custody in pursuance of the order, or that brought an action against the serjeant-at-arms, and com- he might be dealt with according to the order. Asplained of an assault and false imprisonment; and the suming that the learned judge is right in this opinion, defendant pleaded in justification, that it was ordered as to the warrant,-an opinion in which the other two and resolved by the House of Commons, in pursuance judges who decided for the plaintiff do not seem to have of, and according to, the ancient usages and privileges agreed with him, we cannot but regret, that a question of the House, and the law and custom of Parliament, of so much importance as that which he had before him that the plaintiff should be sent for and brought before should have been decided upon a ground of such a spethe said House, in the custody of the serjeant-at-arms, cial-pleading character, and a ground, too, which was and that the Speaker should issue his warrant accord- only applicable to that particular case, and left the main ingly. Whereupon the Speaker, in pursuance of the question still open. It is not so, however, with the Commons. VOL. IX. S will be to be answered for civilly or criminally." And in the same tone Lord Denman remarks: "But the defendant rests his justification upon higher grounds, and puts forward in the points to be argued a much more extensive privilege. The defendant, he says, being an officer of the House of Commons, is protected by the order of the House directing him to do to the plaintiff the identical act complained of. Such an order of itself, and without more, is an answer to the action. Now, this is the leading proposition maintained by the defendant in the case of Stockdale v. Hansard, and it was upon examination deliberately denied by the unanimous judgment of this court. To the doctrine established by that judgment I fully adhere, unquestioned as it has been in any court of error; strictly conformable, as I am firmly convinced, to the principles of our law, and essential to the existence of a free constitution. Holding, therefore, that the mere order of the House of Commons does not of itself legalise whatever it may require, whether executed by its own officer or by any other person, I must reject this ground of defence. On the contrary, I hold that this court is not at liberty to decline the jurisdiction of examining the grounds upon which the imprisonment of any one of our fellow-subjects may be justified, whatever the dignity or power of those who may have caused his imprisonment-whether it be a question in an action for damages, or on a return to a habeas corpus, or in the more solemn inquest that may be conducted in a criminal court, or in a case of life and death, where homicide may have resulted from enforcing or opposing an order, and the judgments of Lord Denman and Mr. Justice Coleridge. In them, we have an exposition of the law as to the power of the House of Commons, careful to the utmost of the liberty of the subject, and jealous of the power which seeks in the least degree to infringe it. The proposition contended for by the defendant was, in fact, this: that, being an officer of the House of Commons, he was protected by the order of the House directing him to do to the plaintiff the identical act complained of, and that such an order of itself, and without more, was an answer to the plaintiff's action. And upon this Justice Coleridge observes, in language which reflects great honour upon him, "In argument, this point (although stated to be unnecessary for the defence) was insisted upon; no exception was admitted to its truth no limit imposed upon the generality of the proposition, What the quality of the act commanded may be is not to be inquired into; it is enough that the House has ordered it, and, as the House is irresponsible, so must its officer be.' I do not wish to misrepresent the language used; but I think I am bound so to understand it as resting the defence of the officer not on the quality of the thing commanded, but on the unlimited extent of the authority from which the command proceeds. If this were not so, language the most alarming has been wantonly or carelessly used by those whom I, with reason, respect too much, to believe them to be wanton or careless in any matter, least of all in such a matter as this; but, so understood, I venture to say, the proposition is not only untenable, but monstrous. Extreme as it is, it might not unreasonably be met by extreme suppositions. A proposition universally affirm-judge may be compelled to decide upon its legality." ative cannot be true, if the negative of it be true in any one instance; and it is no answer to say, that such extreme exercise of power in our representative body cannot be respectfully, or even decently, presumed. I presume nothing. We ought to have, I admit, the fullest confidence in the humanity, justice, honour, and integrity of the House, as it is entitled to our most sincere veneration; but we have a right to consider our liberties as independent of any such qualities in those who are in authority and resting upon the law,-as a thing not precarious, but which we hold by right. When Lord Camden delivered his memorable judgment in the case last reported in the State Trials, under the title of Seizure of Papers,' he thought it a legitimate mode of proving the illegality of the warrant, to shew the consequences of its being legal: that it would place at the discretion of the Crown the secret papers, cabinet, and bureau of every Englishman in the land, however innocent. If time allowed, and I were so disposed, how much more strong a picture, without the slightest exaggeration, might be drawn of the state we should be in by law, as to the security of property, liberty of person, safety of character or life itself, if the proposition contended for on the part of the defendant were really sanctioned by that law! But it is needless, and I gladly forbear: it is enough to say, that the law is supreme over the House of Commons, as over the Crown itself. If the limits of the law be passed by either, (though, for the most satisfactory reasons, they are themselves irresponsible), the law requires a strict account of their acts in the persons of their agents, and these acts, according to the nature of their illegality, And these two learned judges finding the warrant to be such, that, if it had been issued by any other authority it would not have afforded a defence to the officer exe cuting it, and holding, as we have seen above, that the order of the House would not render valid a warrant otherwise bad, pronounced their judgment for the plaintiff. We have observed, that Mr. Justice Williams differed from the rest of the court:-" All cases of warrants of commitment by inferior jurisdictions were," in his opinion, "wholly inapplicable to the present." It seemed to him "clear that the warrant of the Speaker of the House of Commons, if brought before this court, is judged of upon principles entirely different from those which govern the decision of the cases last referred to." And, applying to the warrant in question the principles, which, in his Lordship's opinion, ought to be applied to warrants of the Speaker, he came to the conclusion, that the warrant afforded a justification to the serjeant-at-arms. Mr. Justice Williams does not, however, quote any authority, nor indeed can any be found, for the proposition, that cases of warrants of commitment by inferior jurisdictions are not applica ble to Speaker's warrants; and, clear as that may be to his Lordship, we confess it is not so to us; and, as lovers of the liberty of the subject, we infinitely prefer the law of Lord Denman and Mr. Justice Coleridge. To their judgments we should point for a sound exposition of the law,—an exposition alike consonant with public liberty and true parliamentary privilege. Emperial Parliament. HOUSE OF LORDS. ancers in the country, that was, he had had their aid and approval, and they had vouched for its efficacy? Why not bring in such an act of Parliament, enacting, that whoever used that form should be held to have done all that was named in the act, and to have given all the necessary warranties, and that it should be as sufficient to all intents as if ten skins of parchment had been used, which was necessary at the present moLord Brougham presented to the House nine Bills for the ment, at the hazard of mistakes? He asked their Lordships reform of the law; viz. "An Act for securing the real Inde- to apply what they did in railway acts to the transfer of espendence of Parliament;" "An Act for amending and declaring tates. The act would not bind any man to use this formula. the Law of Marriage;' "An Act to give a Remedy by way of If a party had a large estate which he wished to sell, he might Declaratory Suits;' "An Act to facilitate the granting of use the present formula, and God help him! The Legislature Leases: An Act to facilitate the Conveyance of Real Pro- told him," If you choose to take our formula, take it, and we perty;" "An Act to render the Assignment of satisfied Terms guarantee it; but you may take the present, with its prolixity unnecessary;" "An Act to facilitate the Admission in Evi- of language and courts of law; whereas, if you take ours, you dence of certain official and other Documents;' ;""An Act to take the best title contained in an English act of Parliament." enable Parties to be examined on the Trial of Civil Actions;" Before leaving the subject of real property, he was about to add and "An Act for furthering the Administration of Criminal a remark upon the state of the law respecting sales or mortJustice." His Lordship referred to the commissions which had gages for terms of years. Nothing more essentially affected been employed in considering the defects of our jurisprudence, the security of landed property, and, therefore, it was of imand the means to be advised for reforming them. One of those portance that some remedy should be applied to cure the decommissions applied itself to the subject of the business in the fects which had grown up in this branch of the law. The term courts of law, and the recommendations of that commission led of years was generally a long one-500 or 1000 years. The to the carrying of a variety of most important measures for the object was, that the termor or mortgagee should hold the esamendment of the civil law relating to actions affecting per- tate till out of the rents and profits money should be raised to sonal rights, and to what were called personal and mixed actions fulfil certain purposes. In the course of years the purpose in the courts of law. Another commission, at the head of would be accomplished, and the object secured, and, properly which was a noble and learned friend of his now present, was speaking, there should be a surrender of the term by the appointed to inquire into the law affecting real property, and termor. But this was often not done; it was often neglected, to suggest such improvements in that most important branch and, therefore, the term was still outstanding; or the term of the law as might appear to be safe, beneficial, and practi- might be surrendered, and the property might be left by the cable. His Lordship said, that, in consequence of the recom- owner with the termor for purposes of his own. In these cases mendations of these commissions, great improvements had been the title of the termor was only ideal; it had a mere spectral effected during the last twenty years. It would be, indeed, no existence; but it had the very great advantage of being able to xaggeration to say, that so great had been the change made by rise up, and become substance, and operate destruction. That gradual and mature amendments, that, if many of the old law-spectral being was existing all the while, and what was the yers-not merely Lord Hale and Lord Holt, but Lord Ken- consequence? He would suppose the term to be out; the you, Lord Ellenborough, Mr. Fearne, and Mr. Shadwell, once borrower went and borrowed more money, and took another the ornaments of the bench and of the Profession-were to rise term, and did not tell the party of whom he took the land that from the repose which they were now enjoying, undisturbed by there was another term outstanding. The second termor had the statements of clients or the perversion of reports, of which only an equity life interest; the other termor got the legal esthere was too often reason to complain, they would find them- tate. Afterwards the borrower went to a third termor,-a selves in a new world, and would not recognise the law which man who borrowed once was very apt to borrow again,—and the they were accustomed to expound. After a few more eulogies third party knew nothing of what had taken place. Finding it on the improvements that had already taken place, his Lord-out, he goes to the first mortgagee, and bargains with him and ship proceeded to point out the defects which he thought still gets the first term, and he gets the legal estate, and thus comrequired amendment, commencing with the modes of trans- pletes his title. What does he do then? He "squeezed out," ferring real property. Nothing, he said, could be conceived as the lawyers say, or " shoved out"-these were legal terms worse than the principles regulating the conveyance of real es--the middle lender, and this middle lender lost his money, tate in this country, whether in fee simple or by lease for years; which was as effectually squeezed out of him as the breath was and yet the free commerce of land was of the utmost import- forced out of the body by the ordinary operation of squeezing; ance. At present in every conveyance there was such an his money was squeezed out, his land was squeezed out, his endless prolixity of statement, in preamble, in recitals, in par- security was squeezed out of him. All this was the work of cels, in covenants, in warranty, that, in the case of a small esthat spectral right he had alluded to. The maxim of the law, tate, the expense became a bar to the sale. This expense was "prior tempore potior est jure," was here contravened. Courts the same in conveying one acre as 1,000. It was not merely of law presumed a term to be surrendered; but no man could the parchment, and the writing by the engrosser, but the con- tell when a court had so presumed. Terms might be vested in Teyancer also was to be paid. The longer these deeds were, trustees; and if the trustee had died, it was necessary to go to too, the greater was the risk of error,-the chance of a flaw. a court of probate to discover his representative. But what Their Lordships signed deeds probably without ever reading court of probate? It might be the diocesan court; but them, trusting to their solicitor to do it; but how did he do if he had 57. in another diocese, there must be a metro80? By looking at the parchment while his clerk looked at politan probate. Registration would provide a remedy for this. the draught, and not then reading it again-the clerk looking at The Real Property Commissioners said, with respect to the the parchment while he looked at the draught; and the chance law of terms, that, amongst its bad qualities, it made one inwas, therefore, that he made a mistake in reading a line of the nocent man the victim of another innocent man, and not unparchment, and the clerk another in reading a line of the frequently exposed both innocent men to be the victims of a draught. It was the more likely, because both the solicitor fraudulent party. Therefore it was he had brought in a bill to and the clerk knew that any error was not likely to be discovered remove at once this great scandal of the law as to outstanding before they were in their graves; yet a small error might be of terms. With regard to the recommendation of the Real Prothe greatest importance. In Langton v. Langton the whole perty Commissioners, that a system of general registration case arose from a single line being left out in copying a should be introduced, the measure would be a most beneficial will relating to very large property in Oxfordshire. Why one. What possible objection could be made to a system of hot at once, in favour not merely of all landed proprietors, registration, it was not easy to divine. It all, however, lay in but of all commercial men, for if the first borrowed, the one word-Yorkshire. He did not mean in the sense of asothers lent; if the first sold, the others were the purchasers, tuteness or cunning; but there was a registration in Yorkshy not do in favour of both what the Legislature was doing shire, and a registration-clerk with 40007. a year; and there in respect to railway bills? Why not at once facilitate the sale were attornies in Yorkshire, who were all set against it for the and transfer of land, and protect property against bad titles lucre of gain; which attornies, as in other shires, though he through flaws, by consolidating the law in one short bill, con- could not say they had their thumbs upon all the landed intaning a form of a deed,-as his bill contained,-a deed of four terest in the county, had a very great and overweening power lines, which had been drawn up by the most skilful convey- over the landed interest, especially those who were in the way of borrowing money, as well as those who lent money on land. With respect to the law of evidence much remained to be done, though a great deal had been done. Last year a noble and learned friend of his had brought in a bill respecting incapacity on account of credit. That was a great improvement in the law of evidence. There remained another improvement,-to allow Quakers and others to make an affirmation instead of an oath in criminal cases. This led him to state what appeared to him to be a great defect in the law respecting interested evidence. No interest, however great, in the event of a suit, was sufficient to exclude a man's relations. Why not examine the parties themselves, then? This was done in the Court of Chancery; why not in the courts of common law, under due restrictions? That was another improvement which he proposed. The only other points upon which he should trouble their Lordships were two improvements in the law, one civil, the other criminal. The first related to a declaratory action, which he proposed to give, under proper restrictions in respect to costs. The other related to our criminal jurisprudence. Great difficulty had been found to consist in the inability to send more commissions of oyer and terminer. By his bill the Government were at liberty to send commissions to central counties, to which offenders might be sent from other counties, and judges might be sent four times a year to try prisoners in those counties. But the most important of all improvements related to status. If a person were to come to reside in a country, and were told that parties might be living in it, and no lawyer could tell them whether they were married or not, and whether their children were bastards or not, and whether they could or could not succeed to their father's estates,-he would say that it was a very barbarous country. That, however, was the case in England. Then there was a conflict upon this point between the law of England and the law of Scotland. Again, if a man went abroad, the judges here say, a divorce abroad cannot dissolve an English marriage; but, if the man had married in Scotland, no one could tell whether the marriage was a good one, or not. The prevailing opinion was, that it was not worth a farthing, there being a conflict between the English and Scotch judges,-one saying one thing, and one another. He should propose by his bill, that twelve months' residence in Scotland should be required before a divorce of a marriage should be obtainable there, and that a three weeks' residence in Scotland should be required before what was called a Gretna-green marriage could take place. He hoped they would not be long without some general law on the subject, as, in consequence of a recent decision, it was doubtful whether a marriage in Ireland or their colonies, or in any place where it might be impossible to find an English clergyman, was a marriage or not, and, if it had not been a decision of their Lordships, he should have thought it utterly erroneous. Before he concluded, he must notice another branch of the law, in which various defects had been complained of. In no branch of the law had defects been remedied in a manner more entirely satisfactory to the whole community, than those of the law of debtor and creditor. Imprisonment on mesne process was wholly abolished; they had abolished imprisonment for debt, retaining it only for fraud or contumacy in refusing to discover property. He could not quit this subject without stating, that he thought there was one change still necessary, as a consequence of the great alteration they had made in the law by abolishing imprisonment for debt; he thought members of the two Houses of Parliament ought no longer to con sider freedom from legal process with respect to debt as the flower of their prerogative, and essential to the privileges of their station. While arrest was the law, it was quite fit their persons should be secure, because they might be imprisoned for factious purposes, and be subjected to oppression from the Crown, not so likely to happen in modern days as in ancient times, when the privilege arose; at all events, it was then necessary that their persons should be safe. But even their persons were not safe if they committed a misdemeanour or a fraud. The law laid it down, that the law-makers should not be law-breakers; and as it was in law, so it was in common sense. Admitting their persons to be sacred from arrest, still there was now an end of arrest; why, then, should Members of Parliament have a privilege of not paying their debts? Why should a member of the House of Commons, or of the House of Lords, be the only person in the community exempted from the obligation of paying his debts? If they would not pay their debts while they could, or were reduced to such a deplorable state, that a man sued them, and sued in vain, for 207. or 307., not getting twenty pence in payment, were they fit to represent the Commons in one House of Parliament, or to compose the aristocracy, the hereditary legislators, and judges, in the other? How could a noble Lord sit there, and condemn persons, or hear them condemned, for having defrauded their creditors, by having money and refusing to pay it, when he was doing the same thing, and that every day? He might fail in now carrying that measure; their Lordships might have the courage to say that this state of things ought to continue,-that it was right it should continue. The other House, representing the people, might also have the courage to say so now; but that courage would ooze out by degrees,they would find it would not very long survive. By the 52 Geo. 3, a bankrupt could not sit in the House of Commons. The law shewed great favour to the bankrupt, because he might not have become so from his own fault. A person in trade might become so from the accidents of commerce, from the failure of a correspondent, from the casualties of peace and war, and other unavoidable circumstances. Yet a bankrupt could not sit in Parliament, while there was no law to prevent an insolvent-one who had money, and would not pay, or who had no money, and could not-from sitting there, though they were unfit to make the laws who could not obey them. He had now done. He hoped he should live to see all these measures pass; he hoped he should see the General Registry Act passed; that he should see the amendments of the cri minal code carried out, and, added to the improvements in it made by the present Government and Parliament, a digest of the civil law, which would be an appropriate sequel to those great improvements. If he had been happy enough to persuade or stimulate their Lordships and the other House of Parliament and the ministers of the Crown to the doing of this great and good work, he had no wish whatever that any name but theirs should be inscribed upon that column. [The noble and learned Lord concluded by laying his bills on the table.] Lord Campbell said, he should defer his observations till the nine bills of his noble friend came before them. He would merely state, that he should particularly support the Bill for simplifying the Conveyance of Real Property. At present the parchment which conveyed a piece of land were sometimes as large as the land itself. He wished an attempt had been made to establish the registry of deeds, because that was the foundation of legis. lation on other points. While he was a member of the other House, he had laboured day by day on this subject; he got a committee appointed, and, though the members of it were nearly all against the registry when they began, at the conclu sion of the inquiry they were in favour of it. But the country attornies his noble and learned friend had alluded to were too strong for them. So strong an interest were they found, that he might relate now what was matter of history. When he was appointed Solicitor-General to William IV, the only stipulation made with him was, that he should not for a time at least bring in any bill for the appointment of a general registry. But, till such a registry was established, he thought the doing away with the terms of years was rather hazardous. The nine bills were read a first time. MASTERS IN CHANCERY.-The Lord Chancellor has appointed the following gentlemen Masters Extraordinary in the High Court of Chancery:-James Boodle, of Cheltenham, Gloucestershire; and John Brooking, of Dartmouth, Devonshire. ADMISSION OF ATTORNIES.-The number of Gentlemen who have passed their Examination before the Examiners at the Law Institution, and have given notice of applying to be admitted as Attornies during Trinity Term, amount to 116. There are also twentyone applications for Renewal of Certificates, and three for Admission, made pursuant to Judge's order of the last day of Easter Term. SIR W. FOLLETT.-It is with the greatest pleasure that we are enabled to state, the learned Attorney-General is considered by his medical attendants and family to be daily improving in health. His cough has nearly subsided.-Evening Paper. |