Article 1, Section 5, Clauses 1--4

[Volume 2, Page 285]

Document 2

Brass Crosby's Case

95 Eng. Rep. 1005 C.P. 1771

Lord Chief Justice de Grey.--If either myself, or any of my brothers on the Bench, had any doubt in this case, we should certainly have taken some time to consider, before we had given our opinions; but the case seems so very clear to us all, that we have no reason for delay.

The writ by which the lord-mayor is now brought before us, is a habeas corpus at common law, for it is not signed per statutum; it is called a prerogative writ for the King; or a remedial writ; and this writ was properly advised by the counsel for his Lordship, because all the Judges (including Holt) agreed, that such a writ as the present case required, is not within the statute: this is a writ by which the subject has a right of remedy to be discharged out of custody, if he hath been committed, and is detained contrary to law; therefore the Court must consider, whether the authority committing is a legal authority; if the commitment is made by those who have authority to commit, this Court cannot discharge or bail the party committed, nor can this Court admit to bail, one charged or committed in execution. Whether the authority committing the lord-mayor, is a legal authority or not, must be adjudged by the return of the writ now before the Court; the return states the commitment to be by the House of Commons, for a breach of privilege, which is also stated in the return; and this breach of privilege or contempt is, as the counsel has truly described it, threefold; discharging a printer in custody of a messenger by order of the House of Commons; signing a warrant for the commitment of the messenger, and holding him to bail; that is, treating a messenger of the House of Commons as acting criminally, in the execution of the orders of that House. In order to see whether that House has authority to commit, see Co. 4 Inst. 23. Such an assembly must certainly have such authority, and it is legal because necessary: Lord Coke says they have a judicial power; each member has a judicial seat in the House, he speaks of matters of judicature of the House of Commons. 4 Inst. 23. The House of Commons, without doubt, have power to commit persons examined at their Bar touching elections, when they prevaricate or speak falsely; so they have for breaches of privilege, so they have in many other cases. Thomas Long gave the Mayor of Westbury 4l. to be elected a burgess; he was elected, and the mayor was fined and imprisoned, and Long removed. Arthur Hall, a member, was sent to the Tower, for publishing the conferences of the House. 4 Inst. 23. This power of committing must be inherent in the House of Commons, from the very nature of its institution, and therefore is part of the law of the land; they certainly always could commit in many cases: in matters of elections, they can commit sheriffs, mayors, officers, witnesses, &c. and it is now agreed that they can commit generally for all contempts. All contempts are either punishable in the Court contemned, or in some higher Court; now the Parliament has no Superior Court; therefore the contempts against either House can only be punished by themselves. The stat. 1 Jac. 1, cap. 13, sect. 3, sufficiently proves, that they have power to punish, it is in these words, viz. "Provided always, that this Act, or any thing therein contained, shall not extend to the diminishing of any punishment to be hereafter by censure in Parliament inflicted upon any person which hereafter shall make, or procure to be made, any such arrest as is aforesaid." So that it is most clear, the Legislature have recognized this power of the House of Commons. In the case of The Aylesbury men, the counsel admitted, Lord Chief Justice Holt owned, and the House of Lords acknowledged, that the House of Commons had power to commit for contempt and breach of privilege. Indeed, it seems, they must have power to commit for any crime, because they have power to impeach for any crime. When the House of Commons adjudge any thing to be a contempt, or a breach of privilege, their adjudication is a conviction, and their commitment in consequence, is execution; and no Court can 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 a competent jurisdiction; in such case, this Court is not a Court of Appeal.

It is objected; 1, that the House of Commons are mistaken, for that they have not this power, this authority; 2, that supposing they have, yet in this case they have not [Volume 2, Page 286] used it rightly and properly; and 3, that the execution of their orders was irregular. In order to judge, I will consider the practice of the Courts in common and ordinary cases. I do not find any case where the Courts have taken cognizance of such execution, or of commitments of this kind; there is no precedent of Westminster-Hall interfering in such a case. In Sir J. Paston's case, 13 Rep. there is a case recited from the Year-Book, where it is held that every Court shall determine of the privilege of that Court; besides, the rule is, that the Court of remedy must judge by the same [law] as the Court which commits: now this Court cannot take cognizance of a commitment by the House of Commons, because it cannot judge by the same law; for the law by which the Commons judge of their privileges is unknown to us. If the Court of Common Pleas should commit a person for a contempt, the Court of King's Bench would not inquire into the legality or particular cause of commitment, if a contempt was returned; yet in some cases the Court of King's Bench is a Court of inquiry, but in this case is only co-ordinate with this Court. In the case of Chambers, Cro. Car. 168, Chambers was brought up by habeas corpus out of the Fleet; and it was returned, that he was committed by virtue of a decree in the Star-Chamber, by reason of certain words he used at the council-table, &c. for which he was censured to be committed to the Fleet, till he made his submission at the council-table, and paid a fine of 2000l. and at the Bar he prayed to be delivered, because the sentence was not warranted by any law or statute: for the Statute 3 Hen. 7, which is the foundation of the Court of Star-Chamber, doth not give them any authority to punish for words only. But all the Court informed him, that the Court of Star-Chamber was not erected by the Stat. 3 Hen. 7, but was a Court many years before, and one of the most high and honourable Courts of Justice; and to deliver one who was committed by the decree of one of the Courts of Justice, was not the usage of this Court, and therefore he was remanded. The Courts of B. R. or C. B. never discharged any person committed for contempt, in not answering in the Court of Chancery, if the return was for a contempt; if the Admiralty Court commits for a contempt, or one be taken up and committed on an excommunicato expiendo, this Court never discharges the persons committed. Formerly, when many abuses were committed, and the people could not obtain a remedy, the subject was not contented with the ancient habeas corpus, but did not complain of the Courts for refusing them what they could not by law grant them; instead of that, they sought redress by petition to the Throne. In Chief Justice Wilmot's time, a person was brought by habeas corpus before this Court, who had been committed by the Court of Chancery of Durham; that Court being competent, and having jurisdiction, the man was not discharged, but recommitted. How then can we do any thing in the present case, when the law by which the lord-mayor is committed, is different from the law by which he seeks to be relieved? He is committed by the law of Parliament, and yet he would have redress from the common law; the law of Parliament is only known to Parliament-men, by experience in the House. Lord Coke says, Every man looks for it, but few can find it. The House of Commons only know how to act within their own limits; we are not a Court of Appeal; we do not know certainly the jurisdiction of the House of Commons; we cannot judge of the laws and privileges of the House, because we have no knowledge of those laws and privileges; we cannot judge of the contempts thereof, we cannot judge of the punishment therefore.

I wish we had some code of the law of Parliament; but till we have such a code, it is impossible we should be able to judge of it. Perhaps a contempt in the House of Commons, in the Chancery, in this Court, and in the Court of Durham, may be very different; therefore we cannot judge of it, but every Court must be sole judge of its own contempts. Besides, as the Court cannot go out of the return of this writ, how can we inquire into the truth of the fact, as to the nature of the contempt? We have no means of trying whether the lord-mayor did right or wrong: this Court cannot summon a jury to try the matter; we cannot examine into the fact; here are no parties in litigation before the Court: we cannot call in any body; we cannot hear any witnesses, or depositions of witnesses; we cannot issue any process; we are even now hearing ex parte, and without any counsel on the contrary side. Again, if we could determine upon the contempts of any other Court, so might the other Courts of Westminster-Hall; and what confusion would then ensue! none of us knowing the law by which persons are committed by the House of Commons. If three persons were committed for the same breach of privilege, and applied severally to different Courts, one Court perhaps would bail, another Court discharge, a third re-commit.

Two objections have been made, which I own have great weight; because they hold forth, if pursued to all possible cases, consequences of most important mischief. 1st, it is said, that if the rights and privileges of Parliament are legal rights, for that very reason the Court must take notice of them, because they are legal. And 2dly, if the law of Parliament is part of the law of the land, the Judges must take cognizance of one part of the law of the land, as well as of the other. But these objections will not prevail. There are two sorts of privileges which ought never to be confounded; personal privilege, and the privilege belonging to the whole collective body of that assembly. For instance, it is the privilege of every individual member, not to be arrested; if he was arrested, before the Stat. 12 & 13 W. 3, the method in Westminster-Hall was, to discharge him by writ of privilege under the Great Seal, which was in the nature of a supersedeas to the proceedings; and as soon as it came into the Court of B. R. and was pleaded there, then it became a record, and the pleading concluded, si Curia domini Regis placitum praedictum cognoscere velit aut debeat. The Stat. 11 & 12 W. 3, has altered this, and there is now no occasion to plead the privilege of a member of Parliament. 2 Stran. 985, Holiday & Al. versus Colonel Pitt. There is a great difference between matters of privilege coming incidentally before the Court, and being the point itself directly before the Court; in the first case the Court will take notice of them, because it is necessary, in order to prevent a failure of justice; as in Lord Banbury's case, where the Court of King's Bench determined against [Volume 2, Page 287] the determination of the House of Lords; but in that case they considered the legality and validity of the letters patent, without regarding the other right of a seat in the House of Lords, with which the Court did not concern themselves. The counsel at the Bar have not cited one case where any Court of this Hall ever determined a matter of privilege which did not come incidentally before them. If a question is to be determined in this Court touching a descent, whereby property is to be determined, and which depends upon legitimacy; that is, whether the father and mother were married lawfully; this Court must determine by the bishop's certificate; but in some cases, where the legitimacy of marriage does not come in question, but cohabitation only for a great length of time, which is evidence of a marriage, comes in question, this Court will determine according to the verdict of a jury, although the Courts of Westminster-Hall go by a different rule from the Spiritual Courts. But the present case differs much from those which the Court will determine; because it does not come incidentally before us, but is brought before us directly, and is the whole point in question; and to determine it, we must supersede the judgment and determination of the House of Commons, and a commitment in execution of that judgment.

Another objection has been made, which likewise holds out to us, if pursued in all its possible cases, some dreadful consequences; and that is, the abuses which may be made by jurisdictions from which there is no appeal, and for which abuses there is no remedy: but this is unavoidable; and it is better to leave some Courts to the obligation of their oaths. In the case of a commitment by this Court or the King's Bench, there is no appeal. Suppose the Court of B. R. sets an excessive fine upon a man for a misdemeanor; there is no remedy, no appeal to any other Court. We must depend upon the discretion of some Courts. A man not long ago was sentenced to stand in the pillory, by this Court of Common Pleas, for a contempt. Some may think this very hard, to be done without a trial by jury; but it is necessary. Suppose the Courts should abuse their jurisdiction, there can be no remedy for this: it would be a public grievance; and redress must be sought from the Legislature. The laws can never be a prohibition to the Houses of Parliament; because, by law, there is nothing superior to them. Suppose they also, as well as the Courts of Law, should abuse the powers which the constitution has given them, there is no redress, it would be a public grievance. The constitution has provided checks to prevent its happening; it must be left at large; it was wise to leave it at large: some persons, some Courts, must be trusted with discretionary powers; and though it is possible, it is in the highest degree improbable, that such abuses should ever happen, and the very supposal is answered by Serjeant Hawkins, in the place cited at the Bar. As for the case of the Chancery committing for crimes, that is a different thing, because the Chancery has no criminal jurisdiction; but if that Court commits for contempts, the persons committed will not be discharged by any other Court. Many authorities may be drawn from the reign of Charles, but those were in times of contest. At present, when the House of Commons commits for contempt, it is very necessary to state what is the particular breach of privilege; but it would be a sufficient return, to state the breach of privilege generally: this doctrine is fortified by the opinion of all the Judges, in the case of Lord Shaftesbury, and I never heard this decision complained of till 1704; though they were times of heat, the Judges could have no motive in their decision, but a regard to the laws: the Houses disputed about jurisdiction, but the Judges were not concerned in the dispute. As for the present case, I am perfectly satisfied, that if Lord Holt himself were to have determined it, the lord-mayor would be remanded. In the case of Mr. Murray, the Judges could not hesitate concerning the contempt by a man who refused to receive his sentence in a proper posture: all the Judges agreed, that he must be remanded, because he was committed by a Court having competent jurisdiction: Courts of Justice have no cognizance of the Acts of the Houses of Parliament, because they belong ad aliud examen. I have the most perfect satisfaction in my own mind in that determination. Sir Martin Wright, who felt a generous and distinguished warmth for the liberty of the subject; Mr. Justice Denison, who was so free from connections and ambition of every kind; and Mr. Justice Foster, who may be truly called the magna charta of liberty of persons, as well as fortunes; all these revered Judges concurred in this point: I am therefore clearly and with full satisfaction of opinion, that the lord-mayor must be remanded.

Gould Justice.--I entirely concur in opinion with my Lord Chief Justice, that this Court hath no cognizance of contempts or breach of privilege of the House of Commons: they are the only judges of their own privileges; and that they may be properly called judges, appears in 4 Inst. 47, where my Lord Coke says, an alien cannot be elected of the Parliament, because such a person can hold no place of judicature. Much stress has been laid upon an objection, that the warrant of the Speaker is not conformable to the order of the House, and yet no such thing appears upon the return, as has been pretended. The order says that the lord-mayor shall be taken into the custody of the serjeant or his deputy; it does not say, by the serjeant or his deputy. This Court cannot know the nature and power of the proceedings of the House of Commons; it is founded on a different law; the lex et consuetudo Parliamenti, is known to Parliament-men only. Trewynnard's case, Dier 59, 60. When matters of privilege come incidentally before the Court, it is obliged to determine them to prevent a failure of justice. It is true this Court did, in the instance alluded to by the counsel at the Bar, determine upon the privilege of Parliament in the case of a libel; but then that privilege was promulged and known; it existed in records and lawbooks, and was allowed by Parliament itself; but even in that case, we now know that we were mistaken, for the House of Commons have since determined, that privilege does not extend to matters of libel. The cases produced respecting the High Commission Court, &c. are not to the present purpose, because those Courts had not a legal authority; the resolution of the House of Commons is an adjudication, and every Court must judge of its own contempts.

Blackstone Justice.--I concur in opinion, that we cannot [Volume 2, Page 288] discharge the lord-mayor; the present case is of great importance, because the liberty of the subject is materially concerned. The House of Commons is a Supreme Court, and they are judges of their own privileges and contempts, more especially with respect to their own members: here is a member committed in execution by the judgment of his own House. All Courts, by which I mean to include the two Houses of Parliament, and the Courts of Westminster-Hall, can have no controul in matters of contempt. The sole adjudication of contempts, and the punishment thereof, in any manner, belongs exclusively, and without interfering, to each respective Court. Infinite confusion and disorder would follow, if Courts could by writ of habeas corpus, examine and determine the contempts of others. This power to commit results from the first principles of justice; for if they have power to decide; they ought to have power to punish: no other Court shall scan the judgment of a Superior Court, or the principal seat of justice; as I said before, it would occasion the utmost confusion, if every Court of this Hall should have power to examine the commitments of the other Courts of the Hall, for contempts; so that the judgment and commitment of each respective Court, as to contempts, must be final, and without controul. It is a confidence, that may, with perfect safety and security, be reposed in the Judges, and the Houses of Parliament. The Legislature since the Revolution (see 9 & 10 W. 3, c. 15) have created many new contempts. The objections which are brought of abusive consequences prove too much, because they are applicable to all Courts of dernier resort: et ab abusu ad usum non valent consequentia, is a maxim of law as well as of logic. General convenience must always outweight partial inconvenience; even supposing (which, in my conscience, I am far from supposing) that in the present case the House has abused its power. I know, and am sure, that the House of Commons are both able and well inclined to do justice. How preposterous is the present murmur and complaint! the House of Commons have this power only in common with all the Courts of Westminster-Hall: and if any persons may be safely trusted with this power, they must surely be the Commons, who are chosen by the people; for their privileges and powers are the privileges and powers of the people. There is a great fallacy in my brother Glynn's whole argument, when he makes the question to be, whether the House have acted according to their rights or not? Can any good man think of involving the Judges in a contest with either House of Parliament, or with one another? and yet this manner of putting the question would produce such a contest. The House of Commons is the only judge of its own proceedings: Holt differed from the other Judges in this point, but we must be governed by the eleven, and not by the single one. It is a right inherent in all Supreme Courts: the House of Commons have always exercised it. Little nice objections of particular words and forms, and ceremonies of execution, are not to be regarded in the acts of the House of Commons; it is our duty to presume the orders of that House, and their execution, are according to law. The habeas corpus in Murray's case was at common law. I concur intirely with my Lord Chief Justice.

Nares Justice.--I shall ever entertain a most anxious concern for whatever regards the liberty of the subject; I have not the vanity to think I can add any thing to the weight of the arguments used by my Lord Chief Justice and my brothers: I have attended with the utmost industry, to every case and argument that has been produced, and most heartily and readily concur with my Lord Chief Justice and my brothers.

The lord-mayor was remanded to the Tower.

The Founders' Constitution
Volume 2, Article 1, Section 5, Clauses 1--4, Document 2
The University of Chicago Press