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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
    1. Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723
    2. Case of the Sheriff of Middlesex (1840) 11 Ad & E 273
    3. Bradlaugh v Gossett (1884) 12 QBD. 271
    4. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
    5. R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195
    6. R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93
    7. Hamilton v Al Fayed [1999] 3 All ER 317
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Case of the Sheriff of Middlesex (1840) 11 Ad & E 273

LORD DENMAN CJ: I think it necessary to declare that the judgment delivered by this Stockdale v Hansard appears to me in all respects correct. The Court decided there that there was no power in this country above being questioned by law. The House of Commons there attempted to place its privileges on the footing of an unquestionable and unlimited power. It was argued, against that claim, that the dicta of learned Judges by which it was supported had in many cases been hastily thrown out, and were encountered by others of a contrary tendency from Judges not less eminent, and by precedents. I endeavoured to establish that the claim advanced in that case tended of a despotic power which could not be recognised or exist in this country....To all these positions, I on further consideration adhere....In deciding the former case, we looked to the law as our only safe guide, discarding all considerations of supposed expediency; and, under the same guidance, we examine the question now before us.

The only question upon the present return is, whether the commitment is sustained by a legal warrant....The great objection remains behind, that the facts which constitute the alleged contempt are not shown by the warrant. It may be admitted that words containing this kind of statement have appeared in most of the former cases; indeed there are few in which they have not. In the Proceedings upon the Case of Jay and Topham (1689 12 St.Tr. 821) where Sir Francis Pemberton and Sir Thomas Jones were committed by the House of Commons for a judgment as just and reasonable as any ever pronounced, the resolution as to each was, that he, "giving judgment to overrule the plea to the jurisdiction of the Court of King's Bench, in the case between Jay and Topham had broken the privileges of the House." I mention this case chiefly for the purpose of correcting a mistake of no small importance. It has been supposed that the resolution to which I referred was passed by the Convention Parliament, and had the sanction of Sir J. Holt, as one of the members: but the resolution was passed in July 1689; and in April of that year Holt was made Chief Justice of the King's Bench. In Brass Crosby's (1771 2 Wm. Bl. 754), Sir F. Burdett's (Burdett v. Abbot (1811) 14 East 1) and Mr. Hobhouse's (1820 2 Chit. Rep 207) cases, words were used showing the nature of the contempt. In the Earl of Shaftesbury's case (1677 6 St. Tr 1269) the form was general: and it was held unnecessary to set out the facts on which the contempt arose. That case is open to observation on other grounds; but I think it has not been questioned on this. In R v Paty (1704 2 Lord Raym 1105) three of the judges adopted the doctrine of that case to the extent of holding that the court could not inquire into the ground of commitment, even when expressed in the warrant. Holt CJ differed from them on that point; but he did not question that, where the warrant omitted to state facts, the cause could not be inquired into. In Murray's (1751 1 Wils 299) case which has often been referred to, and recognised as an authority, the warrant was in a general form.

There is, perhaps, no case in the books entitled to so great weight as Burdett vAbbot, from the learning of the counsel who argued and the judges who decided it, the frequent discussions which the subject under went, and the diligent endeavours made to obtain the fullest information upon it. The judgment of Lord Ellenborough there, as it bears on the point now before us, is remarkable. He says;

"If a commitment appeared to be for a contempt to the House of Commons generally, I would neither in the case of that court, or of any other of the superior courts, inquire further; but if it did not profess to commit for a contempt, but for some matter appearing on the return, which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law, or national' justice; I say, that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to occur), we must look at it and act upon it as justice may require from whatever court it may profess to have proceeded"; (1811 14 East 1 at 150).

Bayley J., as well as Lord Ellenborough, appears in that case to have been of opinion that, if particular facts are stated in the warrant, and do not bear out the commitment, the court should act upon the principle recognised by Holt CJ in R v Paty but, if the warrant merely states a contempt in general terms, the court is bound by it.

That rule was adopted by this court in R v Hobhouse (1820 2 Chit Rep 207) and in the late case of Stockdale v Hansard there was not one of us who did not express himself conformably to it. In the passages which have been cited from my own judgment in that case, as showing that, if a person were committed for a contempt in trespassing upon a member's property, this court would notice the ground of committal, I always suppose that the insufficient ground should appear by the warrant. The Earl of Shaftsbury's case has been dwelt upon in the argument as governing the decisions of the courts on all subsequent occasions; but I think not correctly.

There is something in the nature of the Houses themselves which carried with it the authority that has been claimed; though, in discussing 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 analogous. The Crown has not rights which it can exercise otherwise 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 continual obstruction and insult if they were not entrusted 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 themselves 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 jurisdiction), and without a dissentient voice from the House, affirmed the judgment 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 statute... to inquire into the case on affidavit; 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 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 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 Recorder of London, in Bushell's case, had, in the warrant of commitment, suppressed the fact that the jurymen were imprisoned for returning a verdict of acquittal. I am certain that such will 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 entitfed to discharge these gentlemen from their imprisonment.