Charles Grant Robertson.

Select statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 online

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Online LibraryCharles Grant RobertsonSelect statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 → online text (page 41 of 54)
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Extravagant questions have been sometimes put, illustrating the
impossibility of maintaining such a proposition. . . .

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

' See p. 356.


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 say so, 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 pre-
cluded by the resolution of the House of Commons of May 31,
1837 from inquiring into the legality of the act complained of,
although we are bound to treat that resolution with aU 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. . . .

Where, then is the necessity for this power ? 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. . . .

But it is said that this and all other courts of law are inferior in
dignity to the House of Commons, and that, therefore, it is impossible
for us to review its decisions. This argument appears to me founded
on a misunderstanding of several particulars ; first, in what sense it is
that this court is inferior to the House of Commons ; next, in what
sense the House is a court at all ; and, lastly, in what sense we are
now assuming to meddle with any of its decisions. Vastly inferior


as this Court is to the House of Commons, considered as a body in
the State, and amenable as its members may be for ill conduct in
their office to its animadversions, and certainly are to its impeach-
ment before the Lords, yet, as a court of law, we know no superior
but those courts which may revise our judgments for error ; and in
this respect there is no common term of comparison between this
Court and the House. In truth, -the House is not a court of law at
all, in the sense in which that term can alone be properly applied
here ; neither originally, nor by appeal, can it decide a matter in
litigation between two parties ; it has no means of doing so ; it claims
no such power ; powers of inquiry and of accusation it has, but it
decides nothing judicially, except where it is itself a party, in the
case of contempts. As to them, no question of degree arises between
courts J and, in the only sense, therefore, in which this argument
would be of weight, it does not apply. In any other sense the
argument is of no force. Considered merely as resolutions or acts,
I have yet to learn that this Court is to be restrained by the dignity
or the power of anybody, however exalted, from fearlessly, though
respectfully, examining their reasonableness and justice, where the
rights of third persons, in litigation before us, depend upon their
validity. But I deny that this inquiry tends to the reversal of any
decision of the House ; the general resolution and the res judicanda
are not identical; the House of Commons has never decided upon
the fact on which the plaintiff tendered an issue ; that argument will
be found by-and-by to apply to the cases of committal for contempt,
but it has no place in the consideration immediately before me.


3 Victoria, 1840.

[This was a case arising out of that of Stockdale v. Hansard. WilUam
Evans and John Wheelton, Sheriff of Middlesex, had been committed to
the custody of the Serjeant-at-Arms, having been adjudged guilty of a
contempt and breach of privilege of the House of Commons, in executing
a writ issued after the judgment given in Stockdale v. Hansard. On
January 23, 1840, E. V. Richards moved for a writ of habeas corpus. The
Serjeant-at-Arms was directed by the House of Commons to make a
return, stating that he " held the bodies " of W. Evans and John Wheelton,
" by virtue of a warrant under the hand of Mr. Speaker for a contempt
and a breach of the privilege of the House " (Com. Journ. xcv. 25) ; and


on January 27, 1840, before Denman, O.J., and Justices Littledale,
Williams, and Coleridge, it was moved that the prisoners be discharged on
the ground that the return to the writ was bad. The court held that
(fl) a warrant for commitment by order of the House of Commons for
contempt of the House need not specify the grounds of the order ; (6) it
would take judicial notice of the office of the Speaker of the House and
his authority to give effect to its order. Judgment accordingly that the
prisoners be remanded, not discharged. Wheelton was discharged out of
custody on February 11, because confinement endangered his life ; but in
order to maintain the claim of the House of Commons, Evans was not
discharged until April 15, the royal assent to 3 and 4 Vict. c. 9, which
altered the law, having been given on April 14. The extracts are quota-
tions from the Judge's decision. For authorities see those under Stockdale
V. Hansard.]

There is something in the nature of the Houses themselves which
carries with it the authority that has been claimed ; though, in dis-
cussing such questions, the last important decision is always referred
to. Instances have been pointed out in which the Crown has exerted
its prerogative in a manner now considered illegal, and the Courts
have acquiesced : but the cases are not analagous. The Crown has no
rights which it can exercise other than by process of law and through
amenable officers, but representative bodies must necessarily vindicate
their authority by means of their own, and those means lie in the
process of committal for contempt. This applies not to the Houses
of Parliament only, but, as was observed in Burdett v. Abbot, to the
courts of justice, which, as well as the Houses, must be liable to con-
tinual obstruction and insult if they were not intrusted with such
powers. 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 them-
selves against interference. The test of the authority of the House
of Commons in this respect, submitted by Lord Eldon to the judges
in Burdett v. Abbot, was whether, if the Court of Common Pleas
had adjudged an act to be a contempt of court, and committed for it,
stating the adjudication generally, the Court of King's Bench on a
habeas corpus setting forth the warrant, would discharge the prisoner
because the facts and circumstances of the contempt were not stated,
A negative answer being given. Lord Eldon, with the concurrence of
Lord Erskine (who had before been adverse to the exercise of juris-
diction), and without a dissentient voice from the House, affirmed the
judgement below. 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.


It was urged that, this not being a criminal matter, the Court was
bound by stat. 56 Geo. 3. c. 100. s. 3 to inquire into the case on
aflS.davit, but I think the provision cited is not applicable. 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 un-
seemly to suspect that a body, acting under such sanctions as a House
of Parliament, would in making its warrant suppress facts which, if dis-
cussed, might entitle the person committed to his liberty. If they
ever did so act I am persuaded that on further consideration they
would repudiate such a course of proceeding. What injustice might
not have been committed by the ordinary courts in past times if such
a course had been recognised, as, for instance, if the Eecorder of
London in Bushell's case, had in the warrant of commitment sup-
pressed the fact that the jurymen were imprisoned for returning a
verdict of acquittal. I am certain that such wiU never become the
practice of any body of men amenable to public opinion.

In the present case, I am obliged to say that I find no authority
under which we are entitled to discharge these gentlemen from their



31 Vict., 1867.

[During the Jamaica riots, George WiUiam Gordon, a civilian, was tried
by court-martial for high treason and complicity in the rebellion, sent
tenoed and put to death. The court-martial was ordered by Col. Nelson,
and presided over by Lieut. Brand ; the sentence was approved of by
Col. Nelson and Governor Eyre. Subsequently Nelson and Brand were
indicted for murder mainly on two grounds : (1) that those who ordered
and took part in the trial of Gordon had no jurisdiction ; (2) that if they
had jurisdiction it was corruptly exercised. Lord Chief Justice Cockburn,
in an elaborate charge to the grand jury, reviewed the evidence and
stated his view of the law. The salient passages of this charge are here
excerpted. The jury found " no true Bill," but made a formal present-
ment strongly recommending that " martial law " should be clearly de-
fined by legislative enactment, with which recommendation the Lord
Chief Justice concurred, adding a "solemn and emphatic protest" against
" the exercise of martial law in the form in which it has lately been en-


forced." See authorities for PhilUps v. Eyre, and add Journal for Soc.
of Comp. Leg., April, 1900 ; L.Q.R. xviii.]

The first question, therefore, is whether the Governor had authority
to proclaim martial law — a question obviously of infinite importance,
not only in this case, but in any other similar case which may arise
hereafter. Now one thing is quite clear — namely, that the power of
a Governor to declare martial law can proceed only from one of two
sources. It must either be derived from the commission which he
has received from the Crown, or from some statute, either of imperial
or local legislation. It can be derived from no other source. A
Governor, simply as such, would have no power to declare martial
law ; but, if the terms of his commission are large enough to invest
him with such authority as the Crown possesses, and the Crown has,
by virtue of the prerogative inherent in it, the power to proclaim
martial law, the Governor would have that power. So, again, if, by
virtue of any imperial or local legislation, authority to declare and
exercise martial law has been conferred upon him, he would be
entitled, on the necessity arising, to act upon that authority. We
have, therefore, to inquire, on the present occasion, whether by
virtue of his commission or by virtue of any legislative enactment
the Governor of Jamaica was invested with such power. . . .

This being so, it follows that the Governor, assuming, as I do for
the present purpose, that his commission confers on him all the
executive power of the Crown in the government of the island, can
have no further power to declare martial law, as derived from his
commission, than that which the Sovereign would have. "We are,
therefore, brought face to face, with this great constitutional question
— Has the Sovereign, by virtue of the prerogative of the Crown, in
the event of rebellion, the power of establishing and exercising
martial law within the realm of England 1 . , ,

We need not trouble ourselves with the consideration of whether
there ought to be such a thing as martial law or not : the question
for us is whether theie is such a thing, and wliether the Crown has
the power, and whether the representives of the Crown in our
colonies abroad have the power, to call it into action. And if
martial law can thus be called into existence, then arises this all-
important question, what this martial law is. . . .

So far as I have been able to discover, no such thing as martial
law has ever been put in force in this country against civilians, for
the purpose of putting down rebellion. I own, therefore, that I am
a little astonished when I find persons, in authority and out of


authority, talking and writing about martial law in the easy familiar
way in which they do talk about it, as one of the settled prerogar
tives of the Crown in this country, and as a thing perfectly ascer-
tained and understood, when, so far as I can find it never has been
resorted to or exercised in England for such a purpose at aU. . . .

Assuming the existence of the power to put martial law in force,
whether as inherent in the prerogative or as derived from statutory
enactment, a question of vital importance presents itself, namely,
What is this martial law which is thus to supersede the common law
of England? . . .

In like manner, if a mutiny breaks out on board ship, immediate
force may be resorted to ; you may quell the mutiny if necessary by
killing those engaged iu it. So, if a regiment in an army, or a
company in a regiment, breaks out into mutiny, you may put it
down at once by the immediate application of force. Tou may order
other troops to fire on them, or put them to the sword, if they refuse
to submit. But this is not what can properly be called martial law. It
is part and parcel of the law of England — or perhaps I should say it
is a right paramount to all law, and which the law of every civilised
country recognises — that life may be protected or crime prevented by
the immediate application of any amount of force which, under the
circumstances, may be necessary. But that is not what we are
dealing now with. What we are considering is whether, for the
suppression of a rebellion, you may subject persons not actively en-
gaged in it, and whom you therefore cannot kUl on the spot, to an
anomalous and exceptional law, and try them for their lives without
the safeguards which the law ought to afford. . . .

Now, if such be the law as applied to the soldier, why should it
not be the law applicable to the civilian? Why are we to be told
that when you come to deal with a civilian by martial law, it is to be
something different from the martial law which is applied to the
soldier ? I confess myself at a loss for any reason that can be given
for that assertion, and certainly before I adopt the doctrine that
a law, if it may be called a law, of the uncertain and arbitrary
character which martial law is said to be, can be administered in this
country, and that Englishmen can be tried for their lives under it,
I shall require something more than assertion unsupported by
■authority — of this I am perfectly sure — namely, that in those reper-
tories of the law of England which have been compiled by the sages
and fathers of the law, and which have been handed down to us with
the sanction of their great names, to inform us, and those who are to
come after us in future ages, what the law of England was and is.


no authority for anything of the sort can be found. On the contrary,
when Coke, and Hale, and Blackstone speak of martial law, it is
plain they are speaking of the law applicable to the soldier, or what
in modern phrase is called military law. It is plain that they knew
of no other ; and the fact that when speaking, and clearly speaking,
about the law applicable to soldiers, such men as Lord Hale and Sir
William Blackstone, with their accuracy of statement, call it martial
law and d# not point out any distinction between martial law and
military law as it is spoken of now, goes far indeed to show that
they knew of no such difference, and that the distinction now sup-
posed to exist is a thing that has come into the minds of men
certainly much later than when these eminent luminaries of the law
of England wrote their celebrated treatises.

On the other hand, let us see what authority there is which
justifies the assertion that, if martial law can be legally exercised, it
can be exercised in the arbitrary and despotic form which some
persons contend for, as being something that has no limit, except for
the particular exigency, or, I might almost say, the convenience
of the moment. I will bring before you all that I have been able to
discover. In the first place, I find this distinction taken in the
works upon military courts-martial, written mostly by military men,
as I think, from an entire misconception of the meaning of Lord
Hale, and especially of that of Sir "William Blackstone in his com-
mentaries — a work probably more ready to their hands, and the
language of which is certainly ambiguous and calculated to mislead
uhtil you carefully look to see what is the subject-matter of which
he is treating, upon which all difficulty vanishes. But military
writers upon courts-martial certainly do make this distinction, and
there is also the Authority of two distinguished members of the legal
profession, though not of judicial position. Mr. Headlam, certainly
a gentleman of great learning and judgement, being called upon, when
Judge-Advocate-General, to afford information to the commissioners
at that time appointed under a Eoyal Commission to inquire into
the defences of the United Kingdom, makes the following statement.
He writes : —

" I have to observe, with a view of preventing any misunderstand-
ing on the subject, that there is a broad distinction between the
martial law called into existence and the law administered by courts-
martial for the ordinary government of the army, which for distinc-
tion and accuracy may be called 'military law.' The latter, namely,
military law, is applicable only to the army and such persons con-
nected with it as are made amenable to it by the Mutiny Act. MartiaJ


law, according to the Duke of Wellington, is ' neither more nor less
than the will of the general who commands the army ; in fact, martial
law means no law at all. Therefore the general who declares martial
law, and commands that it shall be carried into execution, is bound to
lay down the rules, regulations, and limits, according to which his
will is to be carried out.'"

The oiDinion thus cited by Mr. Headlam was that of a very great
man, and as to what may be done in an enemy's country, in time of
war, may be perfectly sound — on that I pronounce no opinion — but I
cannot accept the opinion even of so great a man as authority on a
question of law, and I certainly should not recommend anybody to
act upon it in case martial law should be proclaimed in our own
country, or to rely on it as a protection if called upon to answer for
his conduct in a court of justice for any injury inflicted on a feUow-
subject in the exercise of martial law. Mr. Headlam goes on to say —

"The effect of a proclamation of martial law in a district of
England is a notice to the inhabitants that the executive government
has taken upon itself the responsilDiIity of superseding the jurisdiction
of all the ordinary tribunals, for the protection of life, person, and
property, and has authorised the military authorities to do whatever
they think expedient for the public safety."

All this may be true, but I should like to know on what authority
the statement rests. I can only say that I have not been able to find
it, and I hope I shall give no offence when I say that, in a matter of
such importance, before such doctrines as these, involving such serious
consequences if carried into effect, are enunciated in this positive and
unqualified manner, and spoken of as though of ordinary occurrence,
some judicial decision or some high legal authority should be cited,
or at all events instances adduced of the exercise of such a power. . . .

Gentlemen, it may be that all I have said upon the subject of the
law will have left you, as I own candidly it still leaves me, not having
the advantage of judical opinion to guide me, nor of forensic argument
and disputation to enlighten and instruct me, in some degree of doubt.
Let me, therefore, add that if you are of opinion, upon the whole,
that the jurisdiction to exercise martial law is not satisfactorily made
out, and that it is a matter which ought to be submitted to further
consideration on the trial of the accused before a competent court
where all the questions of law incident to the discussion and decision
of the case may be fully raised and authoritatively and definitely con-
sidered and decided, I must say that I think that the safer course will
be to let this matter go forward. If there was a power to put
martial law in force, and consequently jurisdiction to try persons


under it, that will be safely ascertained and firmly established by
judicial decision ; if there was none, it follows that there has been a
miscarriage of justice which calls for inquiry, and as to which further
inquiry ought to take place. If, however, upon the review of the
authorities to which I have called your attention, and of the enact-
ments of the Jamaica statutes, and the recognition and reservation of
the power of the Crown in the Acts of Parliament, you think the
accused ought not further to be harassed by criminal proceedings,
and that the case against them ought not to be submitted to the con-
sideration of a jury, you wiU say so by ignoring this indictment;
upon this you must exercise your own judgement. Again on the
second branch of the case, in which we take the legality of martial
law for granted, if you think that although there may have been a
mistake, and a most grievous mistake, in condemning and sending
this man to death, yet that the proceedings were done honestly and
faithfully, and in what was believed to be the due course of the
administration of justice, again I say you ought not to harass the
accused persons by sending them to trial to another tribunal. If, on
the other hand, you think there is a case which, at all events, calls
for further inquiry and for an answer on the part of those who stand
charged with this most serious offence, then you wUl find a true bUl.

(Charge of Cockburn to the grand jury in R. v. Nelson and Brand,
ed. by P. Cockburn, and ed., 1867.)


m Vict., 1868.

[Wason, the defendant, brought an action for libel against Walter, one
of the proprietors of The Times, for a report of a debate in the House of
Lords, in which it was contended that statements had been made affecting
the character of the plaintiff. The statements made in debate were,
of course, privileged ; but it was argued that the privilege did not extend
to a report not published under the authority of Parliament ; see Stock-
dale v . Hansard, p. 380. The jury found for the defendant, and on argument
for a new trial Cockburn, C.J., for reasons set forth in the excerpt, gave the

Online LibraryCharles Grant RobertsonSelect statutes, cases, and documents to illustrate English constitutional history, 1660-1832, with a supplement from 1832-1894 → online text (page 41 of 54)