H. OF R.]

Case of Samuel Houston.

asserted and exercised, to arrest, try, and punish for a past offence. We are not asked to imprison this defendant, in order to prevent a repetition of the attack. That, sir, in my judgment, we should have a right to do, if any such danger was to be apprehended. But that is not pretended. We act here to punish for the past offence, not to disable the offender from committing one in future. We assume to sit as a court in judgment upon a transgressor, not to shield ourselves against approaching danger.

[MAY 9, 1832.

sembly in the exercise of a certain power, we are apt to infer that all other bodies, of the like general nature, are rightfully clothed with a similar authority. But, unless the cases are parallel in their substantial features, it is manifest that no just argument in favor of any particular construction, or the existence of a particular power, can be thus drawn. Indeed, sir, it would be worse than idle to infer the accuracy of an opinion, or the existence of a power, by such pretended analogical process. And vain, At the inception of this prosecution, Mr. Speaker, I sir, and idle, I will venture to say, must be every effort to stated to the House, very briefly, and without premedita- establish the existence of this disputed power by any anation, my views upon this question. Subsequent reflec-logy between the State constitutions and that of the Unittion and examination have inspired me with greater confi-ed States. We shall find, sir, that in many of the States dence in the accuracy of the opinion then expressed. I their constitutions expressly confer this power; in others, am aware, sir, that that opinion has been denounced as it has been conferred by statute; as in England, each House unfounded and visionary--as alike unsupported by reason, of Parliament is asserted to possess it, in virtue of the geand, what is more with some gentlemen, the authority of neral law of the land, and not upon the "tyrant's plea," names. Thus attacked, not reasoned down, I am very necessity. happy to call to my aid the opinions and the reasons on which they are founded, as formed and expressed by some of the most enlightened men of the age. I am proud to take shelter from these assaults under the wing of the Secretary of State, (Mr. Livingston,) and the present Lord Chancellor of England. The expressed and recorded opinions of these gentlemen, I believe, will be found to sustain all I have advanced on this or the former occasion. Before I sit down, I will read them to the House, that gentlemen may judge for themselves, and, if they please, attempt to answer and refute them. But, before I offer these authorities, I ask the attention of the House to other grounds on which this controverted power has been asserted, and attempted to be sustained in argument.

May I ask the House to look, with me, into the State constitutions? I know, sir, that the examination must be dry, and very little calculated to attract and secure attention; yet it seems necessary to take this course. How can this argument, which has been drawn from cases which have arisen in State legislative bodies, be met and refuted, otherwise than by showing that the State constitutions are entirely unlike that of the United States? It will be found, sir, that while the latter is silent upon the subject, the former give the power in express terms.

session."

"The Senate, Governor, and Council shall have the same powers in like cases.'

I begin, sir, with New Hampshire. The constitution of that State declares that "the House of Representatives shall have authority to punish, by imprisonment, every person who shall be guilty of disrespect to the House, in If the power in fact exist, as asserted, it must be either its presence, by any disorderly and contemptuous behabecause it has been specifically granted by the constitu- vior, or by threatening or ill-treating any of its members, tion, or because it is incidental to some power which has or by obstructing its deliberations-every person guilty of been specifically granted. A specific grant is not pre-a breach of its privileges, in making arrests for debt, or tended; nor is it asserted to be incidental to any particular by assaulting any member during his attendance at any power which has been specifically conferred on the House. It is rather averred to be possessed by the House, because indispensably necessary to the existence of such a body. The right of self-defence has already been admitted to exist. That may, perhaps, not improperly be called an incidental right. But the power to punish for breaches of privilege and contempts of the House, as they are call-out these constitutional provisions? Are these provisions ed, is also claimed as incidental, because necessary; and, to sustain this allegation, it is asserted that a similar power exists on the same ground, not only in the two Houses of the British Parliament, but also in the different branches of the State Legislatures. It is, indeed, claimed as inherent in all legislative assemblies. Upon this ground the two gentlemen from Connecticut, who addressed the House, [Messrs. HUNTINGTON and ELLSWORTH,] have affirmed the existence of this power. I also understood the gentleman from Virginia, before referred to, to agree with them in an expression of the same opinion.

Here, sir, the power to punish cannot be disputed. It is expressly given to each legislative House, and to the Governor and Council. Would they have possessed it with

utterly idle and unmeaning? Those who maintain that this House possesses these powers as incidental and necessary, are bound to maintain that these clauses in the constitution of New Hampshire are entirely senseless.

"Each

The constitution of Maine is equally explicit. House, during its session, may punish, by imprisonment, any person, not a member, for disrespectful or disorderly behavior in its presence, for obstructing any of its proceedings, threatening, assaulting, or abusing any of its members for any thing said, done, or doing, in either House."

Massachusetts is substantially the same as New Hampshire. The House of Representatives "shall have authority to punish, by imprisonment, every person, not a member, who shall be guilty of disrespect to the House, by any disorderly or contemptuous behavior in its presence; or who in the town where the general court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the House, or who shall assault any of them therefor."

Have these honorable gentlemen traced the power of the two Houses of Parliament to its source? Have they ascertained its character and extent? Do they, indeed, suppose that those who claim for these bodies a power to punish, rest their claim on the ground of necessity? If such are their views, as the argument implies, how greatly are they mistaken; how much at variance with the staunch advocates for privilege and power in England. And have these gentlemen looked into the several State constitutions to ascertain what powers are thrown upon their legislative assemblies? We reason from "The Senate shall have the same powers in like cases; analogy. Finding that similar language when used upon a and the Governor and Council shall have the same authorisimilar subject, and in reference to a like object, has re-ty to punish in like cases." ceived a particular and approved interpretation, we infer Maryland is not less explicit. "The House of Delethat the interpretation was just. If such instances have gates may punish, by imprisonment, any person who shall been numerous; if the acquiescence has been spontaneous be guilty of a contempt, in their view, by any disorderly and general, and for a long period of time, the argument or riotous behavior," &c. "They may also punish, by has great force. So, if we find one free legislative as-imprisonment, any person who shall be guilty of a breach

MAY 9, 1832.]

cases."

But

of privilege, by arresting on civil process, or by assault- or that it would exist on the ground of necessity. ing any of their members during their sitting, or on their believing, as they did, that it might, in certain cases, be way to, or return from the House of Delegates." safely lodged in such bodies, they thought proper, in "The Senate may exercise the same power in similar plain and intelligible terms, to define the offences, and confer the power to punish. This seems to me a just South Carolina. "Each House may punish, by impri-inference from what has been done. The American peosonment, during sitting, any person, not a member, who ple, then, have spoken upon this very question; and have shall be guilty of disrespect to the House, by any disorder- condemned, in audible tones, the doctrine of undefined ly or contemptuous behavior in its presence, or who, du- privileges and necessary powers. Whatever privileges ring the time of its sitting, shall threaten harm to the body they thought proper to confer, have been given. Others or estate of any member, for any thing said or done in have been withheld. They have intended to leave nothing either House, or who shall assault any of them therefor." in this respect to construction or implication. So also in The constitution of Georgia is precisely like that of conferring power, if they choose to erect their legislative South Carolina. bodies into courts of justice, and authorize them to punish those who should violate their rights, they have done so in express terms. They have thus acted wisely and intelligibly. They have placed their veto upon the slavish doctrine of undefined privilege and power, which, drawn from a foreign source, is attempted to be engrafted upon our free and definite system of government,

Ohio. "Each House may punish, by imprisonment, during their session, any person, not a member, who shall be guilty of disrespect to the House, by any disorderly or contemptuous behavior in their presence."

Tennessee, Indiana, Illinois, Missouri, the same as

Ohio.

Mississippi. "Each House may punish, by imprisonment, during the session, any person, not a member, for disrespectful or disorderly behavior in its presence, or for obstructing any of its proceedings.'

I have done, sir, with the argument in support of the power of this House, drawn from the general assertion that a similar power exists in, and has been exercised in State legislative assemblies. The analogy fails. Theirs is an I do not find, sir, that any other State has conferred express power; ours is claimed as an incident. We look this power by a constitutional provision. But several of into the constitutions and statutes of the States, and see that the State constitutions contain a clause of this description: the power is given in explicit language. Will an express that each House shall have all powers necessary for a delegation of power to other bodies aid us to prove that this branch of the Legislature of a free and independent House possesses it as an incident? Certainly not. State. Connecticut, Vermont, Pennsylvania, and De- as many cases as gentlemen please, they prove nothing to laware, are of this class. Such a clause, fairly un- this purpose; they are wide of the mark, and leave the derstood, may not perhaps confer this power. The believers in this incidental power precisely where they question would still remain, is this a necessary power? I started.

Cite

do not intend to discuss that question, or maintain that a I will examine two or three particular cases which have power to try and punish is a necessary power. I main-been mentioned. One arose in the Virginia House of Detain, on the contrary, that it is not. I have only adverted legates in 1784. It was the case of John Warden, a loyal to this class of constitutional provisions, as introductory to Scotch gentleman, residing in Virginia, whose temper the remark, that the constitution of the United States docs was excited by the passage of a bill through the House of not contain any similar grant of power. It does not as-Delegates, which was supposed to prevent the recovery sume to transfer to one or both Houses of Congress all of British debts. "In a moment of loyal excitement, he power, or all power which may be necessary; but only exclaimed, that if the House had passed such an act, some such specific and enumerated powers as were supposed of them had refused to pay for the coats on their backs." to be necessary. Should a legislative House, of either of For this high contempt and breach of the privileges of the States last mentioned, therefore, hold that this power that House, he was taken into custody; but, on declaring was necessary for a branch of the Legislature of a free and that it never was his intention to affront the dignity of the independent State, the argument to sustain that opinion House, or insult any member of it, he was discharged. would be infinitely stronger than it possibly can be in This case is pressed upon us as a precedent, as an aufavor of the power now claimed and exercised by this House. thority, to justify the course pursued in the present inOther States have, by public statutes, created and de-stance. What is the case? An arrest for verbal scandal. clared the rights and privileges of members of their re- The House was proceeding to punish for this atrocious spective Legislatures, and provided the proper mode of attack upon its dignity. The precedent is commended to redress and punishment for their violation.

The constitution of Virginia is silent in these respects. Yet an act of its Legislature, passed in 1799, confers large privileges and immunities upon members of that body, and contains every provision necessary for their prompt and efficient vindication.

our observance as an authority. This House then may punish for words spoken, which reflect upon the integrity of the House, or any of its members. Are gentlemen prepared for this consequence? Would the honorable gentleman [Mr. DODDRIDGE] who brought this precedent to the notice of the House, live up to his own rule? Surely he New York has acted upon this subject; has declared would not: for in his opinion the House cannot punish for and defined legislative contempts, and expressly authoriz-written or printed scandal, however gross. But before ed either branch of its Legislature to inflict punishment for the honorable gentleman had pressed this case upon us, he offences of that character. should have proved two propositions:

1st. That the powers of this House are analogous to those of the Virginia House of Delegates.

2d. That that House did not transcend its own powers. Until both these are established, the case is without authority, and deserves very little regard here.

What now, sir, becomes of this argument drawn from cases which have arisen in the State Legislatures, and which have there been summarily punished? Can such cases prove that the power to punish is an incidental power? That it exists, because it is necessary that it should exist? If so, why in these numerous instances has it been Instances of legislative usurpation are not very unfreexpressly given? Let me also, sir, ask the advocates for quent, and this was probably one of that description. It this incidental and necessary power, if these repeated seems at least to have been so regarded in that venerable declarations by the citizens of the several States, in form- commonwealth; for although, in 1784, one branch of its ing their constitutions, and by legislative enactments, do Legislature assumed a power to punish for privileges not furnish a very cogent and convincing argument that which had not been created either by constitution or by they did not believe in the incidental nature of this power, statute, yet, in 1799, opposite views prevailed, and both

VOL. VIII.-183

H. OF R.]

Case of Samuel Houston.

[MAY 9, 1832.

branches of its Legislature, by the act before referred to, A general argument has been urged. It is insisted that proceeded to declare and define the rights and privileges of a power to punish is incident to every grant of legislative the members of those bodies. But further, sir, this prece-authority to a public body. I state the position as it has dent was created without discussion: the resolution for the been advanced. It is guarded in its terms. A grant of arrest passed "without a division." This lets us into its legislative power to a public body, not to an individual, cartrue character. It passed in silence, without attracting ries with it a power to punish for contempts and breaches notice, as many other things, infinitely more mischievous, of privilege. The former may thus acquire the power, find their way through all public assemblies. It became the latter cannot. The President of the United States, a precedent without debate or division; had a division been called, I apprehend the honorable gentleman would not have cited it to-day for us to respect and follow. I, sir, shall do neither. I will not disguise my contempt for its mawkishness and absurdity. Trifling and frivolous as it is--overruled and exploded by legislation, and I doubt not by public opinion, at home--1 hope, sir, it will receive its quietus here, by the utter disregard and condemnation of this House.

and Governors of the several States, are each invested with a portion of legislative power. Yet it is not pretended that they necessarily acquire this high attribute. A single individual is here the legislator. Legislative power then does not necessarily imply and carry with it the authority in question, but only when vested in a public body. Why this distinction? On what reason is it founded? Is an assembly of individuals more exposed to insults and injuries, and less efficient in securing respect and confidence, than Another case was adduced by the gentleman from Vir- a single individual? Does such an assembly therefore reginia, not a legislative case, but one decided by the court quire, and necessarily possess, a different and more enof common pleas of Philadelphia county, in Pennsylvania, larged power than a sole legislator? Those who insist on in 1788. Martin, a member of the convention, called by this distinction may explain it to the House and to the that State, on the question of adopting the constitution of public; I am content to leave it without further note or the United States, was served with a summons in a civil comment. suit. A motion was made to set aside the proceedings, on The power to try and punish for offences which have account of his privilege. President Shippen decided that been committed, is judicial in its nature. It is the power the English law of Parliament governed the case, and that of a court. This House has assumed, for several weeks, the defendant was privileged from summons. The pro-to sit in that character. It is now proceeding to judgment ceedings were accordingly vacated. What does this prove upon the case before it. We have heard the complaint; to the present purpose? Not that the Pennsylvania con- the accused was arrested and brought before us: he pleadvention had authority to vacate the proceedings, nor that led to the charge preferred against him. Witnesses have this House has any similar power. It shows the opinion been subpoenaed, sworn, and examined; and counsel heard entertained by the Pennsylvania court upon the question of in the defence. These bespeak the true character of the privilege, and of its own power, but nothing upon the proceeding. It is judicial, not legislative. Whence, sir, power of a legislative assembly in such a case. That a do we obtain this power? I ask, and hope to receive a court is authorized to entertain and determine such ques- more rational answer than has yet been given-that it is tions, is admitted. A court may punish for this outrage. necessary, and therefore we have it. But upon the doctrine advanced by the gentleman from Why more necessary to a legislative than an executive Virginia, in another part of his speech, Martin need not assemblage? Why more incident to one than the other? have applied to the court for relief; that might have been In truth, it is not incident to any description of power, or granted by the convention of which he was a member; to any individual or public body. An executive officer, for the honorable gentleman maintains that every public as well as a legislator, may be assaulted. Executive as body is authorized to enforce the enjoyment of its privileges, well as legislative authority may thus be contemned. Both and to punish for their violation. Yet the case does not are personal indignities and public wrongs. Why may assert any such principle; indeed, the inference from it is not one officer, as well as the other, claim to sit in judg directly the reverse. The convention was not applied to, ment on the offender? What reason exists for a discrimifor no one believed it had any authority to interfere for nation? Are executive duties less sovereign in their the breach of privilege. The court was appealed to, for nature? Surely not. Rather the reverse. The proper it was a judicial question, which that tribunal had an indis-explication of the difficulty is, that neither legislative nor putable right to entertain and determine.

executive authority carries this as an incident. Society, by A gentleman from Connecticut [Mr. ELLSWORTH] men- law, confers this, and all other judicial powers, upon such tioned the case of Clinton and Clark, which occurred in tribunals or magistracy as it thinks proper. It is derived New York about twenty years since. Clinton was a mem- from positive law. Has it been so transferred to this House? ber of the Senate of that State, and was challenged to a If so, let it be shown, and thus end the controversy. duel by Clark. This matter was brought before the Se- But although the power to punish for contempts, as nate, and by its order Clark was arrested and committed well as for all other offences, is judicial in its nature, yet to prison. I am not, sir, disposed to question the justice courts of justice do not necessarily possess it. With them or propriety of that step. The Senate, it must be pre-it is not an incidental, but a substantive, legal power. The sumed, acted as it was authorized to do, with a view to right of self-defence is conceded to a court as well as to prevent a duel, or to guard a member of its body from all other public bodies; but the right to punish must be personal outrage. I will not deny that a challenge to mor- derived from the whole body of the community, in which tal combat may evince a determination, not only to seek, it alone originally resides, and from which it can only be but to obtain satisfaction by personal violence--"peacea-acquired by positive law.

bly if we can, forcibly if we must." To arrest the arm of All this, sir, would seem to be very, plain; yet it deviolence, to prevent such a catastrophe, Clark was detained serves to be dwelt upon more at large. The constitution in custody. It was an exercise of a power which has been of the United States provides for organizing courts, and inconceded to this House--the power and the right to guard vesting them with judiciary powers. At the first session and protect its members against every species of antici-of Congress under that instrument, courts were organized pated violence. But it by no means furnishes a precedent and judges appointed. Yet, sir, these tribunals were not where no danger of future violence is charged or pre- by their creation invested with the power of inflicting puntended. The Senate of New York did not suppose itself ishment for contempts. It is admitted that the common authorized to punish for the challenge. All it assumed law does clothe courts of general jurisdiction with this to do, was upon the principle of self-protection, and with power. Such is the well settled effect and operation of a single view to that object. that system. But the United States have not adopted the

MAY 9, 1832.]

common law.

As a system, it is universally admitted not discriminates between privilege and power: he found both to constitute any part of the law of the United States. in their constitution; as ours, whatever they may be, must Such is the settled opinion of the highest judicial tribunal be found in the constitution of the United States. But in the country, and Congress has at all times legislated where, in that instrument, do we find a warrant for the upon the same idea. No branch or department of this power this House has assumed? Where the right to doff Government can therefore derive any power from the the legislative character, and assume that of the judge? To common law. Conscious of this, Congress, by the judi- try, convict, punish? cial act of 1789, expressly authorized all the courts of the United States to "punish by fine and imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same."

Look into the constitution. It vests all legislative power therein granted in a Congress, which shall consist of a Senate and House of Representatives. The executive power is in like manner vested in a President, as the judicial It is a principle of the common law, recognised and laid power is in the supreme and inferior courts. It is true, down by the highest authority in England, that one court sir, that this distribution is not strictly accurate, for the cannot judge what shall or does constitute a contempt Senate, as it has "the sole power to try all impeachments," against another. Nor can one court, in any way, directly is so far possessed of judicial power. This House may review the judgment of another in a matter of contempt. also "judge of the elections, returns, and qualifications of Each court, as to such questions, is supreme, and free its own members;" may "punish its members for disorderly from all coercion and constraint by any other court. behavior, and, with the concurrence of two-thirds, expel The principle is, of course, limited to courts of general a member." These, in their nature, are judicial funcjurisdiction. The King's Bench cannot adjudge what shall tions, and so far this House may act as a court. But these constitute a contempt against the common pleas; nor shall powers are expressly conferred by the constitution. In the common pleas, in like cases, interfere with the King's no part of that instrument, however, do we find the slightBench. Both are alike independent of each other, and est shadow of authority for assuming to punish any one, of the courts of Chancery and Exchequer, as they also are except a member. of every other court.

Such is the doctrine of contempts of court in England, and hence its truly despotic and dangerous character. Each court being the sole judge of what shall be deemed a contempt of its authority, and free from all supervision and control, may of consequence adjudge whatever it pleases to be contemptuous. The judgment is final and conclusive. The contempt being thus decided, it is equally at the discretion of the court to adjudge and inflict the punishment. Fine, imprisonment, reprimand, banishment, mutilation; all have been resorted to. All may still be, where the common law in its unmitigated rigor is still in

force.

Parliamentary contempts, and the power of each House of Parliament to inflict punishment, are claimed to be of the same character. Undefined privileges; unlimited power, derived from the lex Parliamenti. Irresponsible, supreme, absolute, and uncontrolled. Whatever they may think proper to adjudge contemptuous, is so; that judgment is a conviction. The courts cannot review it; they are concluded and bound to regard it as lawful.

hope, sir, that enough has been advanced to satisfy every dispassionate mind that this power is not expressly conferred upon this House:

That it is not incidental to the power of legislation, or to any other power, which this House does possess: That it cannot be said to be a power necessarily vested in any individual or public body:

That its incidental character cannot be proved or upheld by any supposed analogy, drawn from the State Governments, and cases which have there arisen:

That it is judicial in its nature; and that every tribunal which exercises it, acts as a court-none possesses it upon the principle of necessity, but because conferred by positive law.

I do not, sir, deny the efficacy of the common law, and of the lex Parliamenti, to effect these mighty purposes; to render the exercise of these powers entirely lawful. But until we shall adopt these systems, precedents, drawn from one or the other source, will be without authority, and I trust very little entitled to our respect. "To introduce examples from the British House of Commons," observed the late Chief Justice Parsons, of Massachusetts, in a case of legislative privilege before him, "cannot much illustrate the subject. The privileges of that House are not But why, sir, is it argued that this House possesses a derived from any written constitution, but have been ac- certain power, because the House of Commons has it? I quired by the successful struggles of centuries, directed beg to know on what principle that conclusion should foleither against the monarchy or an hereditary aristocracy. low. Why not go to Spain or Portugal? Prove the power The exertions of the Commons have generally been popu- of the Cortes, and thence draw the like inference. Why lar, because the people were supposed to reap the fruits not explain the power of a French National Assembly, or of them. In this State we have a written constitution, a Polish Diet, and thus argue the authority of this House? formed by the people, in which they have defined not only the powers, but the privileges of the House, either by express words, or by necessary implication. A struggle for privileges in this State would be a contest against the people to wrest from them what they have not chosen to grant." [4 Mass. R. 1.]

I now beg the attention of the House to foreign authority--domestic precedents fail, they are inapplicable, and prove nothing. The British Parliament, especially the House of Commons, has been referred to. If gentlemen can show that that House may lawfully exercise this power, they seem to be satisfied with the argument; they jump to the conclusion that this House also possesses the like power. If the two Houses were organized in the same way, and under similar written constitutions, the analogy would be complete, and the argument sound. But that is not pretended. Parliament is omnipotent. It may do whatever is possible should be done. Its powers are unlimited as well as undefined. I need hardly state, what will occur at once to every gentleman, that the powers of the two Houses of Congress, as an aggregate body, or taken separately, are specific, defined, and limited.

Sir, the argument drawn from the House of Commons is equally futile and fallacious. It will be seen that the ground on which that House exercises this authority does not exist here.

It becomes necessary, therefore, to explore that ground; to see what are the powers of that House, and how acSo, sir, the United States have a written constitution. quired. If we find those powers to be very broad and It was formed by the people. In it "they have defined comprehensive in their nature-conferred by the public not only the powers, but the privileges of this House." law of the land, and not claimed or found to exist on the A struggle for further powers or privileges would be a ground of necessity, or as incidental to a legislative assemcontest on our part to wrest from the people what they blage, surely, sir, we need not look further to perceive - have not chosen to grant to us. Chief Justice Parsons the utter inapplicability of such a precedent to this House.

Blackstone, J.

[MAY 9, 1832.

"Here is a member committed in execution by the judgment of his own House." "The House of Commons is a supreme court, and they are judges of their own privileges and contempts." [3 Wills, R. 188.]

Now, sir, the House of Commons claims to be a court, a court of very general, and, in this respect, exclusive jurisdiction. When it punishes for contempts, it does so in its judicial character; claiming that the law and custom of Parliament, which are as much the law of the realm as the common law is, have authorized it to do so. Upon this Chitty, in a note to Blackstone's Commentaries, says, ground the power of that body is advocated and upheld “ The House of Commons merely avails itself, when sitting by the courts and by parliamentary usages. If authority judicially, of the maxim that all courts are final judges of can prove any thing, it proves that such is the character contempts against themselves." [1 Bl. Com. 121.] of that body and the source of its power. I am aware, A commitment by the House of Lords for an alleged sir, that the present Lord Chancellor of England denies contempt, and relief sought by a writ of habeas corpus. that the House of Commons does rightfully possess any Rainsford, J. "The commitment in this case is not for punitive authority. I shall have occasion hereafter to pre- safe custody, but he is in execution on the judgment given sent his views to the House. But those who assert and by the Lords for the contempt; and, therefore, if he be maintain the power of the Commons, claim it as one which bailed, he will be delivered out of execution." [1 Mod. the law has thrown upon that body. Indeed, it is mat- 144.] ter of astonishment that, in a free country, such a power over liberty and life should ever have been claimed on any other ground than that of positive law. Yet, sir, it is here asserted, not as conferred by law, but possessed as an incident, or merely because it is necessary to be possessed by such a body as this House.

I proceed, sir, to sustain by authority the view I have presented of the character and power of the House of Commons.

Lord Coke says, "And it is to be known that the Lords, in their House, have power of judicature, and the Commons, in their House, have power of judicature, and both Houses together have power of judicature."

"The House of Commons is, to many purposes, a distinct court." [4th Inst.]

any case.

Powell, a learned English judge, says, "The House of Lords have a power of judicature, by the common law, upon writs of error, but they cannot proceed originally in But they proceed, too, in another manner in the case of their own privileges, and therein the judges do not assist as they do upon writs of error; and their proceeding in that case is by the lex Parliamenti. So the Commons have also a power of judicature; but that is not by the common law, but by the law of Parliament, to determine their own privileges, and it is by this law that these persons are committed." [2 Ld. Ray. 1105.]

A case of commitment by the House of Lords for a libel, came before the Court of King's Bench. Lord Kenyon, chief justice, observed, "It is said that the House of Lords is not a court of record: that the House of Lords, when exercising a legislative capacity, is not a court of record, is undoubtedly true; but when sitting in a judicial capacity, as in the present case, it is a court of record." [8 T. R. 314.]

So the House of Commons, when punishing for a contempt or breach of privilege, sits as a court.

Lord Chief Justice De Grey. "Lord Coke says, they (the Commons) "have a judicial power; each member has a judicial seat in the House; he speaks of matters of judicature of the House of Commons."

Indeed, it seems they must have power to commit for any crime, for they have power to impeach for any crime. When the House of Commons adjudge any thing to be a breach of privilege, their adjudication is a conviction, and their commitment in consequence is execution, and the court cannot discharge or bail a person that is in execution by the judgment of any other court. The House of Commons, therefore, having an authority to commit, and that commitment being an execution, the question is, what can this court do? It can do nothing when a person is in execution by the judgment of a court having competent jurisdiction; in such case, this court is not a court of appeal." Gould, J. "I entirely concur in opinion with my Lord Chief Justice, that this court hath no cognizance of contempts or breaches of privilege of the House of Commons; they are the only judges of their privileges; that they may properly be called judges, appears in 4 Institutes, 47."

Debate in the House of Commons, 1774, on a question of contempt.--Solicitor General Wedderburne. "I am amazed that the House should, upon this occasion, be considered in the light of a prosecutor. The House is now sitting in its judicial capacity." "We, sir, are a court of inquiry as well as a court of criminal jurisdiction.” In a report made in the House of Commons by a comImittee, of which Sir Francis Bacon was chairman, we find this language:

Attorney General Thurlow.

"We avouch also that our House is a court of record, and so ever esteemed, and that there is not the highest standing court in this land that ought to enter into competency either for dignity or authority with this high court of Parliament."

These may suffice to show that the House of Commons is a court, and in that character inflicts punishment. Let us, however, look a little further into the nature of the power exercised by that body when sitting judicially. It is unlimited, undefined, known only to Parliament men, and not subject to review or inquiry elsewhere.

Sir William Blackstone. "The whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged, in that place to which it relates, and not elsewhere." [1 Blackstone's Commentary, 120.]

Lord Coke. "And this is the reason that judges ought not to give any opinion of a matter of Parliament, because it is not to be decided by the common law, but secundum legem et consuetudinem Parliamenti." [4 Inst.]

In the King's Bench, the court held that the House of Commons were the proper judges of their own privileges, and that this court was now estopped to say that this was not a breach of the privileges of the House of Commons, or that the House of Commons had no such privilege." [2 Salk. 504.]

Holt, Chief Justice, dissented. He said, "when the House of Commons exceed their legal bounds and authority, their acts are wrongful, and cannot be justified more than the acts of private men; that there was no question but their authority is from the law; and as it is circumscribed, so it may be exceeded. To say they are judges of their own privileges and their own authority, and nobody else, is to make their privileges to be as they would have them."

In this opinion, just and reasonable as it is, he stood alone. All the other judges were against him.

Grose, J., adopting the language of Chief Justice De Grey, in a former case, says, "Where the House of Commons (and the same may be said of the House of Lords). adjudge any thing to be a contempt, or a breach of privi lege, their adjudication is a conviction."

In another passage, he observed, in illustration of the power of the House, “Every court must be the sole judge of its own contempts." [8 T. R. 314.]

Gould, J. "This court cannot know the nature and