mitigation17 of an acknowledged evil, and the substance no less than the form of the law would, it is probable, be a good deal improved if the executive government of England could, like that of France, by means of decrees, ordinances, or proclamations having the force of law, work out the detailed application of the general principles embodied in the Acts of the legislature.18 In this, as in some other instances, restrictions wisely placed by our forefathers on the growth
[print edition page 13]
of royal power, are at the present day the cause of unnecessary restraints on the action of the executive government. For the repeal of 31 Henry VIII., c. 8, rendered governmental legislation, with all its defects and merits, impossible, and left to proclamations only such weight as they might possess at common law. The exact extent of this authority was indeed for some time doubtful. In 1610, however, a solemn opinion or protest of the judges19 established the modern doctrine that royal proclamations have in no sense the force of law; they serve to call the attention of the public to the law, but they cannot of themselves impose upon any man any legal obligation or duty not imposed by common law or by Act of Parliament. In 1766 Lord Chatham attempted to prohibit by force of proclamation the exportation of wheat, and the Act of Indemnity (7 George III., c. 7), passed in consequence of this attempt, may be considered the final legislative disposal of any claim on the part of the Crown to make law by force of proclamation.
The main instances20 where, in modern times, proclamations or orders in council are of any effect are cases either where, at common law, a proclamation is the regular mode, not of legislation, but of
[print edition page 14]
announcing the executive will of the King, as when Parliament is summoned by proclamation, or else where orders in council have authority given to them by Act of Parliament.
Houses of Parliament.
Resolutions of Either House of Parliament The House of Commons, at any rate, has from time to time appeared to claim for resolutions of the House, something like legal authority. That this pretension cannot be supported is certain, but there exists some difficulty in defining with precision the exact effect which the Courts concede to a resolution of either House.
Two points are, however, well established.
Resolutions of either House.
First, the resolution of neither House is a law.
This is the substantial result of the case of Stockdale v. Hansard.21 The gist of the decision in that case is that a libellous document did not cease to be a libel because it was published by the order of the House of Commons, or because the House subsequently resolved that the power of publishing the report which contained it, was an essential incident to the constitutional functions of Parliament.
Secondly, each House of Parliament has complete control over its own proceedings, and also has the right to protect itself by committing for contempt any person who commits any injury against, or offers any affront to the House, and no Court of law will inquire into the mode in which either House exercises the powers which it by law possesses.22
The practical difficulty lies in the reconciliation of the first with the second of these propositions, and is best met by following out the analogy suggested by Mr. Justice Stephen, between a resolution of the House of Commons, and the decision of a Court from which there is no appeal.
I do not say that the resolution of the House is the judgment of a Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns, practically invests it with a judicial
[print edition page 15]
character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly, and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy, does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal, and made without consideration; nor for many kinds of verbal slander, though each may involve utter ruin; nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, “Where there is no legal remedy, there is no legal wrong.”23
Law as to effect of resolutions of either House.
The law therefore stands thus. Either House of Parliament has the fullest power over its own proceedings, and can, like a Court, commit for contempt any person who, in the judgment of the House, is guilty of insult or affront to the House. The Case of the Sheriff of Middlesex24 carries this right to the very farthest point. The Sheriff was imprisoned for contempt under a warrant issued by the Speaker. Every one knew that the alleged contempt was nothing else than obedience by the Sheriff to the judgment of the Court of Queen’s Bench in the case of Stockdale v. Hansard, and that the Sheriff was imprisoned by the House because under such judgment he took the goods of the defendant Hansard in execution. Yet when the Sheriff was brought by Habeas Corpus before the Queen’s Bench the Judges held that they could not inquire what were the contempts for which the Sheriff was committed by the House. The Courts, in other words, do not claim any right to protect their own officials from being imprisoned by the House of Commons for alleged contempt of the House, even though the so-called contempt is nothing else than an act of obedience to the Courts. A declaration or resolution of either House, on the other
[print edition page 16]
hand, is not in any sense a law. Suppose that X were by order of the House of Commons to assault A out of the House, irrespective of any act done in the House, and not under a warrant committing A for contempt; or suppose that X were to commit some offence by which he incurred a fine under some Act of Parliament, and that such fine were recoverable by A as a common informer. No resolution of the House of Commons ordering or approving of X’s act could be pleaded by X as a legal defence to proceedings, either civil or criminal, against him.25 If proof of this were wanted it would be afforded by the Act 3 & 4 Vict. c. 9. The object of this Act, passed in consequence of the controversy connected with the case of Stockdale v. Hansard, is to give summary protection to persons employed in the publication of Parliamentary papers, which are, it should be noted, papers published by the order of one or other of the Houses of Parliament. The necessity for such an Act is the clearest proof that an order of the House is not of itself a legal defence for the publication of matters which would otherwise be libellous. The House of Commons
by invoking the authority of the whole Legislature to give validity to the plea they had vainly set up in the action [of Stockdale v. Hansard], and by not appealing against the judgment of the Court of Queen’s Bench, had, in effect, admitted the correctness of that judgment and affirmed the great principle on which it was founded, viz. that no single branch of the Legislature can, by an assertion of its alleged privileges, alter, suspend, or supersede any known law of the land, or bar the resort of any Englishman to any remedy, or his exercise and enjoyment of any right, by that law established.26
