H. or 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 and Governors of the several States, are each invested with been called, I apprehend the honorable gentleman would a portion of legislative power. Yet it is not pretended not have cited it to-day for us to respect and follow. I, that they necessarily acquire this high attribute. A single sir, shall do neither. I will not disguise my contempt for individual is here the legislator. Legislative power then its mawkishness and absurdity. Trifling and frivolous as does not necessarily imply and carry with it the authority it is--overruled and exploded by legislation, and I doubt in question, but only when vested in a public body. Why not by public opinion, at home--I hope, sir, it will receive this distinction? On what reason is it founded? Is an asits quietus here, by the utter disregard and condemnation sembly of individuals more exposed to insults and injuries, of this House. 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 judgdirectly 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 Look into the constitution. It vests all legislative power United States to "punish by fine and imprisonment, at therein granted in a Congress, which shall consist of a Sethe discretion of said courts, all contempts of authority innate and House of Representatives. The executive power any cause or hearing before the same.' 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 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 I do not, sir, deny the efficacy of the common law, and power. If the two Houses were organized in the same of the lex Parliamenti, to effect these mighty purposes; to way, and under similar written constitutions, the analogy render the exercise of these powers entirely lawful. But would be complete, and the argument sound. But that is until we shall adopt these systems, precedents, drawn from not pretended. Parliament is omnipotent. It may do one or the other source, will be without authority, and I whatever is possible should be done. Its powers are untrust very little entitled to our respect. "To introduce limited as well as undefined. I need hardly state, what examples from the British House of Commons," observed will occur at once to every gentleman, that the powers of the late Chief Justice Parsons, of Massachusetts, in a case the two Houses of Congress, as an aggregate body, or of legislative privilege before him, "cannot much illus- taken separately, are specific, defined, and limited. trate 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 Sir, the argument drawn from the House of Commons is only the powers, but the privileges of the House, either equally futile and fallacious. It will be seen that the by express words, or by necessary implication. A strug- ground on which that House exercises this authority does gle for privileges in this State would be a contest against not exist here. the people to wrest from them what they have not chosen to grant." [4 Mass. R. 1.]

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." 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."

"I am

Debate in the House of Commons, 1774, on a question of contempt.--Solicitor General Wedderburne. 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."

Attorney General Thurlow.

"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 committee, of which Sir Francis Bacon was chairman, we find this language:

"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 privilege, 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

MAY 9, 1832.]

Case of Samuel Houston.

[H. OF R.

power of the proceedings of the House of Commons; it is a judicial as well as legislative capacity. When sitting as founded on a different law: the lex et consuetudo Parlia- a court, it is the sole judge of contempts against itself. menti is known to Parliament men only." The power of the House being unlimited, it may convict

"The House of Commons have this power (to punish for any and every cause at its own good pleasure. All for contempts) only in common with all the courts of this is legal, because such is the law of Parliament, which Westminster Hall." [3 Wills, 188.] is part of the law of the land. But that law is unknown to the judges, and known only to Parliament men. The courts can in no case interfere with the judgment of the House; that judgment is conclusive: it can neither be questioned nor inquired into elsewhere.

An historical incident will exhibit the practical effect of this alarming power of the House of Commons. In the first year of the reign of William and Mary, two of the judges of the Court of King's Bench, for overruling a plea which asserted that that court had not jurisdiction in a question of parliamentary privilege, were censured by a resolution of the House, and committed to the custody of the Sergeant-at-Arms for the contempt.

Let us next see how this unlimited and undefined power was conferred on the two Houses of Parliament. We shall find it to be a legal power, conferred by the public law of the land-not incidental, nor growing out of any supposed necessity.

As a court, the House may, and does, commit for contempts, not against its judicial, but its legislative character and capacity. Having, as legislators, received an affront, the members assume their judicial robes, and proceed to inflict summary and discretionary punishment on the of fender! Strange, incongruous, and arbitrary as this may seem, yet it is held to be, not only legal, but just and reasonable, in a country which boasts of a higher degree of civil liberty than it accords to any other nation on the earth.

In the case of Burdett vs. Abbott, decided in the King's Bench in 1811, Lord Ellenborough, chief judge, declared But it may be said that this House, as well as the House that "Lord Coke, and all the writers on the law, had of Commons, has a judicial capacity. True, it has one of held that the lex et consuetudo Parliamenti was part of a qualified nature, as has already been stated. But its eathe law of the land, in its large and extended sense." pacity, in this respect, is strictly defined and limited by the constitution: it is not like that of the House of Commons, altogether undefined and without check or limitation.

He also observed, Mr. Justice Foster says, "The law of Parliament is a part of the law of the land, and there would be an end of all law, if the House of Commons could not commit for a contempt." [14 East, 1.]

Lord Holt. "We are bound to take notice of the customs of Parliament, for they are part of the law of the land."

We have seen, sir, that the law and custom of Parliament is part of the law of the realm. It is also statute law. For this I have the authority of Lord Ellenborough, late Chief Justice of the King's Bench. In the case before referred to, and which grew out of a commitment by the Again: "The lex Parliamenti must be looked on as the House of Commons for an alleged contempt, after remarklaw of the kingdom.” ing that the two Houses of Parliament formerly constitutPowell, J. There is a lex Parliamenti, for the com-ed but one body and sat together, although their separamon law is not the only law of this kingdom; and the House of Commons do not commit men by the common law, but by the law of Parliament." [2 Lord R. 1105.] Lord Coke. "As every court of justice hath laws and customs for its direction, some by the common law, some by the civil and canon law, some by peculiar laws and customs, so the high court of Parliament has its own proper laws and customs." [4 Inst.]

Debate in the House of Commons upon a question of privilege, in 1703:

tion took place as early as the 49 Hen. 3, he observed, "the privileges which have been since enjoyed, and the functions which have been since uniformly exercised by each branch of the Legislature, with the knowledge and acquiescence of the other House and of the King, must be presumed to be the privileges and functions which then, that is, at the very period of their original separation, were statuably assigned to each." Thus he vindicated the power of the House in that case. He maintained that the subsequent and uninterrupted exercise of these functions by the House was evidence of the original act of Parliament to which he had referred as the origin of this authority of the House. Such, according to the opinion of Lord Ellenborough, was the law of Parliament. Statute law, the express and concurrent will of King, Lords, and Common. But Lord Ellenborough did not confine himself to Mr. Harley, (Speaker.) "The common law is the this assertion of the power of the House to punish for concommon usage of the realm. I take the law, of Parliament tempts: he illustrated its propriety by an able general arto be the common law of the land, and the usage of Par-gument. liament to be the law of Parliament."

Mr. Lowndes. "I have read and learned, and believe it is true, that matters of Parliament are to be determined by the laws and customs of Parliament; and I believe there is as good authority for it as there is for writs of error, or any thing else; and that this law and custom of Parliament is a principal part of the law of England."

Mr. Cowper." The law and custom of Parliament is part of the law of the land, and, as such, ought to be taken notice of by all people."

Debate in the House of Commons, in 1771, upon a resolution to punish the Lord Mayor of London for an alleged contempt of that House:

Not content with all this, he presented another argument in support of what he had asserted. He observed, "I come with more satisfaction to an authority which cannot be gainsayed or questioned--to the legislative recogni tion of a power in either House of Parliament to punish by imprisonment."

Let us reflect upon this suggestion. The Chief Justice Attorney General Thurlow. "Every court, sir, has its is approaching what he deems firm ground--the impreg peculiar regulation, and the law of Parliament is the rule nable fortress of his opinion. He had supposed that the of our proceedings. These uninformed declaimers on the power was originally conferred by an act of Parliament, but nature of our jurisprudence should recollect that we have which, in lapse of time, had been lost. He had argued that several laws in this country besides the common law. We the power was just, reasonable, and proper. But, with a have, for instance, the admiralty, the civil, and the eccle- higher satisfaction, he now advances to an "authority siastical law. We have, besides, the law of Parliament, which cannot be gainsayed"--a parliamentary recogniwhich is as much a part of the constitution as any other law."

Sergeant Glynn. "I do not deny that the law of Parliament constitutes a part of the law of the land."

The parliamentary doctrine of contempts seems, in brief, to be of this nature. The House of Commons has

tion. He knew that a recognition by act of Parliament was equivalent to one directly conferring the power: and as Parliament is omnipotent, and may do whatever is possible should be done, such delegation or recognition of the power would be an authority for its exercise which could not very consistently be questioned.

H. OF R.]

Case of Samuel Houston.

[MAY 9, 1832.

The Chief Justice then cites the act of 1 James I, chap. I cite them to show the ground on which the House then 13, which, after a recital, proceeds to declare that said proceeded, and the object which it had in view. act shall not extend to diminishing any punishment there- The House of Commons then can imprison by way of after to be inflicted upon any person concerned in arrest- self-protection-to remove obstructions to its proceeding on execution a member of Parliament.

This act, the Lord Chief Justice observed, was a direct parliamentary recognition of the right of the House to in Hict punishment. [14 East, 1.]

Lord Chief Justice De Grey, in a preceding case, citing the same statute, and applying it in like manner, said, "It is most clear the Legislature have recognised the power of the House of Commons."

Thus, sir, we see the ground on which the power of the House of Commons is placed in England. An original act of Parliament; a parliamentary recognition; the law and custom of Parliament; or, in other words, the general law of the realm. Yet all these grounds are inapplicable here. No original act of Congress, no recognition by act of Congress, can be pretended. Nor is it urged that the law of the land has conferred the power upon this House: the argument has proceeded on other grounds, but which have been already sufficiently dwelt upon.

sion.

ings, not to punish--not in vindication of its privileges. Such are the ancient cases; such is the opinion of the present Lord Chancellor. I grant, sir, that his predecessors have often held otherwise: former Parliaments have held and acted otherwise, and the courts of justice have usually upheld their decisions, however absurd and oppressive. But here, sir, where neither opinion is strictly authoritative or obligatory upon us, which most commends itself to our judgments, that of the present tolerant and liberal Lord Chancellor of England, or of those who held to the divine right of Kings, and the omnipotence of Parliament? Another view of this subject should be presented. The fifth amendment of the constitution of the United States declares that "no person shall be deprived of liberty or property, without due process of law." The arrest and detention must be by some process known to, and authorized by law. By what law, let me ask, sir, has the accused, in this instance, been deprived of his liberty? Where is the legal authority for his detention?

I have stated that the present Lord Chancellor of England denies that the House of Commons is, on these or any other An act of the British Parliament contains a provision grounds, authorized to punish for contempts, although he similar to that which I have just read. In the case of Burconcedes their right to imprison, in order to protect them- dett vs. Abbott, decided in the King's Bench, and before selves, or to remove obstructions to their proceedings. I referred to, it was objected that this act had been violated am bound to present his authority, as well in defence of in the arrest of Burdett for a contempt of the House, his my own views, as to illustrate the subject under discus- counsel insisting that the law and custom of Parliament was not to be regarded as a part of the law of the realm. In April of last year, a debate arose in the House of Lord Ellenborough gave a short answer to the objection, Lords, upon the power of that body to fine and imprison, saying that the lex Parliamenti was part of the law of the by way of punishment for a libel. The Lord Chancellor land, and the imprisonment, therefore, not in violation of expressed his opinion, as an individual peer, that though this great provision in favor of personal liberty. [14 East.] the House of Lords had the undoubted right of imprison- This answer of the Chief Justice was pertinent and conment, as the House of Commons had, in order to remove clusive there. But what answer could he have given, an obstruction to their proceedings, yet that he agreed with what answer could any one give here? The lex Parlia many great legal and constitutional authorities, that their menti has not been adopted, and is not part of the law of right to imprison for a time certain, and to fix a fine cer- this land. Under what law, then, is the accused detaintain, was a disputable question.' He said, "The House ed? Let those who can, answer the question. of Commons has the power of commitment, but not for any certain time; they have the power to commit, as a means of removing an obstruction."

But if this House was, in its creation, empowered to punish for a contempt, it is not so now. A law of the last session has shorn it of that power. If this House convicts The Chief Justice of the King's Bench had, at first, ex-and punishes, it does so as a court. It is then within the pressed a different opinion, but which, in the course of very language and terms of that act. The act declares the discussion, he abandoned. In reply to what had fallen that the power of the several courts of the United States from the Chief Justice, the Chancellor said, "What were to inflict summary punishments for contempts of court, those reasons? I heard them, my lords, with wonder and shall not be construed to extend to any cases, except misamazement. He tells you that, because the courts of law behavior in the presence of the said court, or so near in Westminster Hall have the power to fine and imprison, thereto as to obstruct the administration of justice, &c. so also must the House of Lords and Commons have that The title of this law is, "an act declaratory of the law conpower. Good God! my lords, who ever heard till this cerning contempts of court." It does not profess to create moment; when were you ever told till this moment; when a new rule, but to declare what the former law was. The were you ever told till this day, when you have been told power to inflict punishment for contempts shall not be it by a Lord Chief Justice of England, that the House of construed, &c. Congress then, by this act, declared that Commons has the right to inflict fines and imprisonment the courts of the United States were not by any law auupon his Majesty's subjects, in vindication of their privi-thorized to punish for contempts, unless committed in their leges? No one, who knows any thing about the law and presence, or so near as to interrupt their business. No the constitution of the country, can hesitate for a moment one has suggested that the House of Commons, or this in saying that the Lord Chief Justice is grievously in error here."

This opinion is in conformity with the earlier cases in the House of Commons. That body originally interfered to protect its members, not to punish.

In 1554, Johnson, a burgess, complained of Monyngton, who had beat him, and put him in fear of his life. On that complaint, the House arrested Monyngton, and

sent him to the Tower.

In 1575, Bainbrigg, a member, complained that one Williams had assaulted and threatened him. The House thereupon entertained and proceeded on the complaint. These are believed to be the two first instances in which the House acted upon complaints for personal violence.

House, has greater power in this respect than a court has. Yet Congress has affirmed that the courts could not lawfully punish in a case like the present one. This occurred beyond the presence of the House, and did not in any respect interrupt its proceedings. But if this House is not within the words of that act, is it not clearly within its principle? Ought we to exercise in this case a power which we here denied to every court in the Union? Is it reasonable we should do so? Which is least powerful? Which most stands in need of support against violence? If necessity could confer power upon a public body, which, on that ground, might interpose the stronger claim, this House, or a court of justice?

I have referred to the opinion of Mr. Livingston, which