BREACH OF PRIVILEGE. ANNE, GEO. I. & II. A very few years after this high exercise A prorogation soon afterward followed, but served only to give breathing-time to the exasperated parties; for it must be observed that, though a sense of dignity and privilege no doubt swelled the majorities in each house, the question was very much involved in the general whig and tory course of politics. But Ashby, during the recess, having proceeded to execution on his judgment, and some other actions having been brought against the returning officer of Aylesbury, the commons again took it up, and committed the parties to Newgate. They moved the court of king's bench for a habeas corpus; upon the return to which, the judges, except Holt, thought themselves not warranted to set them at liberty against the commitment of the house. It was threatened to bring this by writ of error before the lords; and in the disposition of that assembly, it seems probable that they would have inflicted a severe wound on the privileges of the lower house, which But the must in all probability have turned out a sort of suicide upon their own. commons interposed by resolving to commit to prison the counsel and agents concerned in prosecuting the habeas corpus, The queen properly anand by addressing the queen not to grant a writ of error. swered, that as this matter, relating to the course of judicial proceedings, was of the highest consequence, she thought it necessary to weigh very carefully what she should do. The lords came to some important resolutions: That neither house of parliament hath any power by any vote or declaration to create to themselves any new privilege that is not warranted by the known laws and customs of parliament; That the house of commons, in committing to Newgate certain persons for prosecuting an action at law, upon pretense that their so doing was contrary to a declaration, a contempt of the jurisdiction, and a breach of the privileges of that house, have assumed to themselves alone a legislative power, by pretending to attribute the force of law to their declaration, have claimed a jurisdiction not warranted by the constitution, and have assumed a new privilege, to which they can show no title by 638 BREACH OF PRIVILEGE. CHAP. XVI. the law and custom of parliament; and that Murray should be committed to Newhave thereby, as far as in them lies, sub-gate, and should receive this sentence jected the rights of Englishmen, and the upon his knees. This command he steadifreedom of their persons, to the arbitrary ly refused to obey, and thus drew on himvotes of the house of commons; That ev-self a storm of wrath at such insolence and ery Englishman who is imprisoned by any audacity. But the times were no more authority whatsoever has an undoubted when the commons could inflict whippings right to a writ of habeas corpus, in order and pillories on the refractory; and they to obtain his liberty by the due course of were forced to content themselves with law; That for the house of commons to ordering that no person should be adpunish any person for assisting a prisoner mitted to him in prison, which, on account to procure such a writ is an attempt of of his ill health, they soon afterward redangerous consequence, and a breach of laxed. The public voice is never favorthe statutes provided for the liberty of able to such arbitrary exertions of mere the subject; That a writ of error is not power: at the expiration of the session, of grace but of right, and ought not to be Mr. Murray, thus grown from an intriguing denied to the subject when duly applied Jacobite into a confessor of popular liberty, for, though at the request of either house was attended home by a sort of triumphof parliament. al procession amidst the applause of the people. In the next session he was again committed on the same charge-a proceeding extremely violent and arbitrary. It has been always deemed a most important and essential privilege of the houses of parliament, that they may punish in this summary manner by commitment all those who disobey their orders to attend as witnesses, or for any purposes of their constitutional duties. No inquiry could go forward before the house at large or its committees, without this power to enforce obedience, especially when the information is to be extracted from public officers against the secret wishes of the These vigorous resolutions produced a conference between the houses, which was managed with more temper than might have been expected from the tone taken on both sides. But, neither of them receding in the slightest degree, the lords addressed the queen, requesting her to issue the writs of error demanded upon the refusal of the king's bench to discharge the parties committed by the house of commons. The queen answered the same day that she should have granted the writs of error desired by them, but finding an absolute necessity of putting an immediate end to the session, she was sensible there could have been no further proceed-court. It is equally necessary (or rather ing upon them. The meaning of this could only be, that by a prorogation all commitments by order of the lower house of parliament are determined, so that the parties could stand in no need of a habeas corpus. But a great constitutional question was thus wholly eluded. We may reckon the proceedings against Mr. Alexander Murray, in 1751, among the instances wherein the house of commons has been hurried by passion to an undue violence. This gentleman had been active in a contested Westminster election, on an anti-ministerial and perhaps Jacobite interest. In the course of an inquiry before the house, founded on a petition against the return, the high-bailiff named Mr. Murray as having insulted him in the execution of his duty. The house resolved to hear Murray by counsel in his defense, and the high-bailiff also by counsel in support of the charge, and ordered the former to give bail for his appearance from time to time. These, especially the last, were innovations on the practice of parliament, and were justly opposed by the more cool-headed men. After hearing witnesses on both sides, it was resolved more so, since evidence not being on oath in the lower house, there can be no punishment in the course of law) that the contumacy or prevarication of witnesses should incur a similar penalty. No man would seek to take away this authority from parliament, unless he is either very ignorant of what has occurred in other times and his own, or is a slave in the fetters of some general theory. But far less can be advanced for several exertions of power on record in the Journals, which, under the name of privilege, must be reckoned by impartial men irregularities and encroachments, capable only at some periods of a kind of apology from the unsettled state of the constitution. The commons began, in the famous or infamous case of Floyd, to arrogate a power of animadverting upon political offenses, which was then wrested from them by the upper house. But in the first parliament of Charles I. they committed Montagu (afterward the noted semi-popish bishop) to the sergeant on account of a published book containing doctrines they did not approve. For this was evidently the main point, though he was also has been committed on a charge which could not possibly be interpreted as a contempt of the house, or a breach of its privilege. It became, however, the practice, without previously addressing the king, to direct a prosecution by the attorneygeneral for offenses of a public nature, which the commons had learned in the course of any inquiry, or which had been formally laid before them. This seems to have been introduced about the beginning of the reign of Anne, and is undoubtedly a far more constitutional course than that of arbitrary punishment by overstraining their privilege. In some instances, libels have been publicly burned by the order of one or other house of parliament. charged with reviling two persons who had | vested with a general power, at least in petitioned the house, which bore a distant all political misdemeanors. resemblance to a contempt. In the long I have not observed any case more reparliament, even from its commencement, cent than this of Mist, wherein any one every boundary was swept away; it was sufficient to have displeased the majority by act or word; but no precedents can be derived from a crisis of force struggling against force. If we descend to the reign of William III, it will be easy to discover instances of commitments, laudable in their purpose, but of such doubtful legality and dangerous consequence, that no regard to the motive should induce us to justify the precedent. Graham and Burton, the solicitors of the treasury in all the worst state prosecutions under Charles and James, and Jenner, a baron of the exchequer, were committed to the Tower by the council immediately after the king's proclamation, with an intention of proceeding criminally against them. Some I have principally adverted to the powmonths afterward, the suspension of the ers exerted by the lower house of parliahabeas corpus, which had taken place by ment, in punishing those guilty of violabill, having ceased, they moved the king's ting their privileges. It will, of course, bench to admit them to bail; but the be understood that the lords are at least house of commons took this up, and, after equal in authority. In some respects, ina report of a committee as to precedents, deed, they have gone beyond. I do not put them in custody of the sergeant-at-mean that they would be supposed at arms. On complaints of abuses in victual- present to have cognizance of any offense ing the navy, the commissioners of that department were sent for in the sergeant's custody, and only released on bail ten days afterward. But, without minutely considering the questionable instances of privilege that we may regret to find, I will select one wherein the house of commons appear to have gone far beyond either the reasonable or customary limits of privilege, and that with very little pretext of public necessity. In the reign of George I., a newspaper called Mist's Journal was notorious as the organ of the Jacobite faction. A passage full of the most impudent longings for the pretender's restoration having been laid before the house, it was resolved, May 28, 1721, "That the said paper is a false, malicious, scandalous, infamous, and traitorous libel, tending to alienate the affections of his majesty's subjects and to excite the people to sedition and rebellion, with an intention to subvert the present happy establishment, and to introduce popery and arbitrary power." They went on after this resolution to commit the printer Mist to Newgate, and to address the king that the authors and publishers of the libel might be prosecuted. It is to be observed that It may surprise those who have heard no violation of privilege either was, or in- of the happy balance of the English condeed could be, alleged as the ground of stitution, of the responsibility of every this commitment; which seems to imply man to the law, and of the security of the that the house conceived itself to be in-subject from all unlimited power, especial whatever upon which the commons could not animadvert. Notwithstanding what they claimed in the case of Floyd, the subsequent denial by the commons, and abandonment by themselves, of any original jurisdiction, must stand in the way of their assuming such authority over misdemeanors, more extensively at least than the commons, as has been shown, have in some instances exercised it. But, while the latter have, with very few exceptions, and none since the Restoration, contented themselves with commitment during the session, the lords have sometimes imposed fines, and on some occasions in the reign of George II., as well as later, have adjudged parties to imprisonment for a certain time. In one instance, so late as that reign, they sentenced a man to the pillory; and this had been done several times before. The judgments, however, of earlier ages give far less credit to the jurisdiction than they take from it. Besides the ever-memorable case of Floyd, one John Blount, about the same time (27th November, 1621), was sentenced by the lords to imprisonment and hard labor in Bridewell during life. 640 BREACH OF PRIVILEGE. ly as to personal freedom, that this power of awarding punishment at discretion of the houses of parliament is generally reputed to be universal and uncontrollable. This, indeed, was by no means received at the time when the most violent usurpations under the name of privilege were first made; the power was questioned by the royalist party who became its victims, and, among others, by the gallant Welshman, judge Jenkins, whom the long parliament had shut up in the Tower. But it has been several times brought into discussion before the ordinary tribunals; and the result has been, that if the power of parliament is not unlimited in right, there is at least no remedy provided against its excesses. The house of lords in 1677 committed to the Tower four peers, among whom was the earl of Shaftesbury, for a high contempt; that is, for calling in question, during a debate, the legal continuance of parliament after a prorogation of more than twelve months. Shaftesbury moved the court of king's bench to release him upon a writ of habeas corpus. But the judges were unanimously of opinion that they had no jurisdiction to inquire into a commitment by the lords of one of their body, or to discharge the party during the session, even though there might be, as appears to have been the case, such technical informality on the face of the commitment as would be sufficient in an ordinary case to set it aside. CHAP. XVI. arrest the plaintiff by order of the house, and should plead that to the jurisdiction of the king's bench, he thought, with submission, he could satisfy the house that such a plea ought to be overruled, and that he took the law to be so very clearly. The house pressed for his reasons, which he rather declined to give. But on a subsequent day he fully admitted that the order of the house was sufficient to take any one into custody, but that it ought to be pleaded in bar, and not to the jurisdiction, which would be of no detriment to the party, nor affect his substantial defense. It did not appear, however, that he had given any intimation from the bench of so favorable a leaning toward the rights of parliament; and his present language might not uncharitably be ascribed to the change of times. The house resolved that the orders and proceedings of this house, being pleaded to the jurisdiction of the court of king's bench, ought not to be overruled; that the judges had been guilty of a breach of privilege, and should be taken into custody. I have already mentioned that, in the course of the controversy between the two houses on the case of Ashby and White, the commons had sent some persons to Newgate for suing the returning officer of Aylesbury in defiance of their resolutions; and that, on their application to the king's bench to be discharged on their habeas corpus, the majority of the judges had refused it. Three judges-Powis, Gould, Lord Shaftesbury was at this time in ve- and Powell-held that the courts of Westhement opposition to the court. Without minster Hall could have no power to judge insinuating that this had any effect upon of the commitments of the houses of parthe judges, it is certain that a few years liament; that they had no means of knowafterward they were less inclined to mag-ing what were the privileges of the comnify the privileges of parliament. Some who had been committed, very wantonly and oppressively, by the commons in 1680, under the name of abhorrers, brought actions for false imprisonment against Topham, the sergeant-at-arms. In one of these he put in what is called a plea to the jurisdiction, denying the competence of the court of king's bench, inasmuch as the alleged trespass had been done by order of the knights, citizens, and burgesses of parliament. But the judges overruled this plea, and ordered him to plead in bar to the action. We do not find that Topham complied with this; at least judgments appear to have passed against him in these actions. The commons, after the Revolution, entered on the subject, and summoned two of the late judges, Pemberton and Jones, to their bar. Pemberton answered that he remembered little of the case; but if the defendant should plead that he did mons, and consequently could not know their boundaries; that the law and custom of parliament stood on its own basis, and was not to be decided by the general rules of law; that no one had ever been discharged from such a commitment, which was an argument that it could not be done. Holt, the chief justice, on the other hand, maintained that no privilege of parliament could destroy a man's right, such as that of bringing an action for a civil injury; that neither house of parliament could separately dispose of the liberty and property of the people, which could only be done by the whole legislature; that the judges were bound to take notice of the customs of parliament, because they are part of the law of the land, and might as well be learned as any other part of the law. "It is the law," he said, "that gives the queen her prerogative; it is the law gives jurisdiction to the house of lords, as judges having been consulted, though not judicially, are stated to have gone along with the majority of the court, in holding that a commitment by either house of parliament was not cognizable at law. But from some of the resolutions of the lords on this occasion which I have quoted above, it may seem probable that, if a writ of error had been ever heard before them, they would have leaned to the doctrine of Holt, unless indeed withheld by the reflection that a similar principle might easily be extended to themselves. it is the law limits the jurisdiction of the | own body, to prison, for contempts or The eight other breaches of privilege, ought to be called house of commons." in question. In some cases this authority is as beneficial, and even indispensable, as it is ancient and established. Nor do I by any means pretend that if the warrant of commitment merely recites the party to have been guilty of a contempt or breach of privilege, the truth of such allegation could be examined upon a return to a writ Whatever inof habeas corpus, any more than in an ordinary case of felony. justice may thus be done can not have redress by any legal means, because the house of commons (or the lords, as it may It does not appear that any commitment be) are the fit judges of the fact, and must for breach of privilege was disputed until be presumed to have determined it accordthe year 1751, when Mr. Alexander Mur-ing to right. But it is a more doubtful ray, of whom mention has been made, question whether, if they should pronounce caused himself to be brought before the an offense to be a breach of privilege, as court of king's bench on a habeas corpus. in the case of the Aylesbury men, which a But the judges were unanimous in refusing court of justice should perceive to be clear"The house of com- ly none, or if they should commit a man to discharge him. mons," said Mr. justice Wright, "is a high on a charge of misdemeanor, and for no court, and it is agreed on all hands that breach of privilege at all, as in the case they have power to judge of their own priv- of Mist the printer, such excesses of jurisileges; it need not appear to us what the diction might not legally be restrained by contempt is for; if it did appear, we could the judges. If the resolutions of the lords not judge thereof."-"This court," said in the business of Ashby and White are Mr. justice Denison, "has no jurisdiction constitutional and true, neither house of in the present case. We granted the habe- parliament can create to itself any new as corpus, not knowing what the commit-privilege; a proposition surely so consoment was; but now it appears to be for a contempt of the privileges of the house of commons. What the privileges of either house are we do not know; nor need they tell us what the contempt was, because we can not judge of it; for I must call this court inferior to the commons with respect to judging of their privileges and contempts against them." Mr. justice Foster agreed with the two others, that the house could commit for a contempt, which, he said, Holt had never denied in such a case as this before them. It would be unnecessary to produce later cases which have occurred since the reign of George II., and elicited still stronger expressions from the judges of their incapacity to take cognizance of what may be done by the houses of parliament. nant to the rules of English law, which require prescription or statute as the basis for every right, that few will dispute it; and it must be still less lawful to exercise a jurisdiction over misdemeanors, by committing a party who would regularly be only held to bail on such a charge. Of this I am very certain, that if Mist, in the year 1721, had applied for his discharge on a habeas corpus, it would have been far more difficult to have opposed it on the score of precedent or of constitutional right, than it was for the attorney-general of Charles I., nearly one hundred years before, to resist the famous arguments of Selden and Littleton, in the case of the Buckinghamshire gentlemen committed by the council. If a few scattered acts of power can make such precedents as a court Notwithstanding such imposing author- of justice must take as its rule, I am sure ities, there have not been wanting some the decision, neither in this case nor in who have thought that the doctrine of un- that of ship-money, was so unconstitucontrollable privilege is both eminently tional as we usually suppose: it was by dangerous in a free country, and repug- dwelling on all authorities in favor of nant to the analogy of our constitution. liberty, and by setting aside those which The manly language of lord Holt has made against it, that our ancestors overseemed to rest on better principles of pub- threw the claims of unbounded prerogalic utility, and even perhaps of positive tive. Nor is this parallel less striking law. It is not, however, to be inferred when we look at the tone of implicit obedithat the right of either house of parlia-ence, respect, and confidence with which ment to commit persons, even not of their the judges of the eighteenth century have |