Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

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 court. It is equally necessary (or rather 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 offences, which was then wrested from them by the upper house. But in the first parliament of Charles I. they committed Montagu (afterwards the noted semi-popish bishop) to the serjeant, on account of a published book, containing doctrines they did not approve.[390] For this was evidently the main point, though he was also charged with reviling two persons who had petitioned the house, which bore a distant resemblance to a contempt. In the long parliament, even from its commencement, 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 months afterwards, the suspension of the habeas corpus, which had taken place by bill, having ceased, they moved the king's bench to admit them to bail; but the House of Commons took this up, and, after a report of a committee as to precedents, put them in custody of the serjeant at arms.[391] On complaints of abuses in victualling the navy, the commissioners of that department were sent for in the serjeant's custody, and only released on bail ten days afterwards.[392] 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.[393] It is to be observed that no violation of privilege either was, or indeed could be alleged as the ground of this commitment; which seems to imply that the house conceived itself to be invested with a general power, at least in all political misdemeanours.

I have not observed any case more recent than this of Mist, wherein any one has been committed on a charge which could not possibly be interpreted on 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 attorney-general for offences of a public nature, which the Commons had learned in the course of any inquiry, or which had been formally laid before them.[394] 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.

I have principally adverted to the powers exerted by the lower house of parliament, in punishing those guilty of violating their privileges. It will of course be understood that the Lords are at least equal in authority. In some respects indeed they have gone beyond. I do not mean that they would be supposed at present to have cognisance of any offence 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 misdemeanours, 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 Nov. 1621), was sentenced by the Lords to imprisonment and hard labour in Bridewell during life.[395]

Privileges of the house not controllable by courts of law.—It may surprise those who have heard of the happy balance of the English constitution, of the responsibility of every man to the law, and of the security of the subject from all unlimited power, especially 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.[396]

Lord Shaftesbury was at this time in vehement opposition to the court. Without insinuating that this had any effect upon the judges, it is certain that a few years afterwards they were less inclined to magnify 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 serjeant-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.[397] 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 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 defence. It did not appear however that he had given any intimation from the bench of so favourable a leaning towards 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.[398]

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, and Powell, held that the courts of Westminster Hall could have no power to judge of the commitments of the houses of parliament; that they had no means of knowing what were the privileges of the Commons, 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 it is the law limits the jurisdiction of the House of Commons." The eight other 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 cognisable 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.[399]

It does not appear that any commitment for breach of privilege was disputed until the year 1751; when Mr. Alexander Murray, of whom mention has been made, caused himself to be brought before the court of king's bench on a habeas corpus. But the judges were unanimous in refusing to discharge him. "The House of Commons," said Mr. Justice Wright, "is a high court, and it is agreed on all hands that they have power to judge of their own privileges; it need not appear to us what the contempt is for; if it did appear, we could not judge thereof."—"This court," said Mr. Justice Denison, "has no jurisdiction in the present case. We granted the habeas corpus, not knowing what the commitment 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 cannot 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."[400] 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 cognisance of what may be done by the Houses of Parliament.

Notwithstanding such imposing authorities, there have not been wanting some who have thought that the doctrine of uncontrollable privilege is both eminently dangerous in a free country, and repugnant to the analogy of our constitution. The manly language of Lord Holt[401] has seemed to rest on better principles of public utility, and even perhaps of positive law. It is not however to be inferred that the right of either house of parliament to commit persons, even not of their own body, to prison, for contempts or breaches of privilege, ought to be called 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 of habeas corpus, any more than in an ordinary case of felony. Whatever injustice may thus be done cannot have redress by any legal means; because the House of Commons (or the Lords, as it may be) are the fit judges of the fact, and must be presumed to have determined it according to right.