III. Chapter custody, "all mayors, sheriffs, under-sheriffs, bailiffs, constables, headboroughs, and officers of the house are required to be aiding and assisting in the execution thereof." Before the year 1810, however, no case arose in which the legal consequences of a Speaker's warrant, and the power of the Serjeant-at-arms in the execution of it, were distinctly explained and recognized by a legal tribunal, as well as by the judgment of Parliament, in punishing resistance. open outer In the case of Sir Francis Burdett, in 1810, a doubt arose Breaking "justified in breaking open the outer or any inner door of the private The attorney-general answered all these questions, except The opinion of the attorney-general, upon which the 165 C. J. 264; Ann. Reg. 1810, p. 344, &c.; 16 H. D. 1 s. 257. 454. 915, &c.; Lord Colchester's Diary, ii. 245. 263, &c. 2 See Lord Ellenborough's opinion, 14 East, 157; 4 Taunt. 401; 5 Dow, 165. Abbot. Colman. Howard v. Gosset. First action, 1842. Gosset. Second action, 1843. III. But although the Serjeant-at-arms may force an entrance, Chapter it was established by the action brought by Mr. Howard, in 1842, that the Serjeant or his messengers are not authorized to remain in the house, if they know that the person to be arrested is from home, in order to await his return.1 If the officer should not exceed his authority, he will be protected by the courts, even if the warrant should not be technically formal, according to the rules by which the Howard v. warrants of inferior courts are tested. In 1843, Mr. Howard commenced another action of trespass against Sir W. Gosset, the Serjeant-at-arms, and the Court of Queen's Bench gave judgment for the plaintiff, on the ground that the warrant was technically informal, and did not justify the acts of the Serjeant. This judgment was reversed by the Court of Exchequer Chamber, by whom the privileges of Parliament were thus expounded: "They construe the warrant as they would that of a magistrate; we construe it as a writ from a superior court; the authorities relied upon by them relate to the warrants and commitments of magistrates; they do not apply to the writs and mandates of superior courts, still less to those of either branch of the High Court of Parliament" Writs issued by a superior court, not appearing See also jurisdicto be out of the scope of their jurisdiction, are valid of themtion of selves, without any further allegation, and a protection to courts of all officers and others in their aid, acting under them; and matters of privilege, that, although on the face of them they be irregular.2 And this principle was extended, by the decision of the lord chief baron, in the action brought in 1852 by Mr. Lines against Lord C. Russell, the Serjeant-at-arms, who, authorized by a warrant issued by the chairman of a committee under the Election Petitions Act, 1848, had taken Mr. Lines into custody for misbehaviour in giving evidence before the committee. Lines v. com mittee. 1 Carrington & Marshman, 382. 210 Q. B. 359; shorthand writer's notes, as printed by the House of Commons, 1847 (39), pp. 166. 168. 3 Shorthand writer's notes, 25th June, 3rd and 13th Nov. 1852; 16 Justice of the Peace, 491; 19 Law law in P. 131. Chapter III. courts of The power of commitment, with all the authority which Causes of commitcan be given by law, being thus established, it becomes the ment key-stone of parliamentary privilege. Either house may cannot be inquired adjudge that any act is a breach of privilege and contempt; into by the and if the warrant recites that the person to be arrested has law. been guilty of a breach of privilege, the courts of law cannot inquire into the grounds of the judgment, but must leave him to suffer the punishment awarded by the High Court of Parliament, by which he stands committed. The Habeas Corpus Act1 is binding upon all persons Habeas Corpus. whatever, who have prisoners in their custody; and it is therefore competent for the judges to have before them persons committed by the Houses of Parliament for contempt; and it is the practice for the Serjeant-at-arms and others, by order of the house, to make returns to writs of habeas corpus.2 bailed. But although the return is made according to law, the Prisoners parties who stand committed for contempt cannot be ad- cannot be mitted to bail, nor the causes of commitment inquired into, by the courts of law. It had been so adjudged by the courts, during the Commonwealth, in the cases of Captain Streater and Sir Robert Pye. The same opinion was expressed in Sheridan's case, by many of the first lawyers in the House of Commons, shortly after the passing of the Habeas Corpus Act; and it has been confirmed by resolutions of the House of Commons, and by numerous subsequent decisions of the courts of law, given on applications for the release, or for the discharge on bail, of persons committed by the Houses of Lords and Commons.5 131 Car. II. c. 2. • Sheriff of Middlesex, 95 C. J. 25, 24th January, 1840; 51 H. D. 3 s. 550; Lines's case, 106 C. J. 147. 148. 153. In 1675 and 1704, the Commons endeavoured to resist the operation of a writ of habeas corpus by orders to the lieutenant of the Tower and to the Serjeant-at-arms, to make no return thereto, 9 ib. 356; 14 ib. 565. 2 ib. 960; 5 ib. 221; 5 Howell, St. Tr. 365. 948; Styles, 415. 4 A.D. 1680, 4 Hans. Parl. Hist. 1262; 9 C. J. 356. 357; 12 ib. 174; 14 ib. 565. 599. case, 6 Lord Shaftesbury's Parliament same power as the courts. III. It may be considered, accordingly, as established, beyond Chapter claims the all question, that the causes of commitment by either house of Parliament, for breaches of privilege and contempt, cannot be inquired into by courts of law: but that their adjudication is a conviction, and their commitment, in consequence, an execution." No other rule could be adopted consistently with the independence of either house of Parliament; nor is the power thus claimed by Parliament greater than the power conceded by the courts to one another.1 Commit ment for house. One qualification of this doctrine, however, must not be offences be- omitted. When it appears, upon the return of the writ, yond the jurisdic simply that the party has been committed for a contempt tion of the and breach of privilege, it has been universally admitted that it is incompetent for the courts to inquire further into the nature of the contempt: but if the causes of commitment were stated on the warrant, and appeared to be beyond the jurisdiction of the house, it is probable, judging by the opinion expressed by Lord Ellenborough, in Burdett v. Abbot, and by Lord Denman in the case of the sheriff of Middlesex, that their sufficiency would be examined. Not necessary to cause of The same principle may be collected from the judgment of the Exchequer Chamber in Gosset v. Howard, where it is said, "It is presumed, with respect to such writs as are actually issued by superior courts, that they are duly issued, and in a case in which they have jurisdiction, unless the contrary appear on the face of them." But it is not necessary that any cause of commitment express any should appear upon the warrant, nor that the prisoner should have been adjudged guilty of contempt.3 It has been a very ancient practice in both houses to send for persons in custody to answer charges of contempt; and in the Lords, to order commit ment. Persons sent for in custody. case, 2 Chit. Rep. 207; 3 Barn. & 1 See the decision of the Court of re W. Dimes, 17th Jan. 1850, 14 2 14 East, 1. 3 Judgment of Court of Exchequer Chamber, Gosset v. Howard (ex parte, Van Sandan, 1 Phillips' Rep. 605). 42 L. J. 201 (26th Nov. 1597); ib. 256 (17th Dec. 1601); ib. 296; 11 ib. Attendance Chapter them to be attached and brought before the house to III. answer complaints of breaches of privilege, contempts, and other offences.1 This practice is analogous to writs of pursuant to attachment upon mesne process in the superior courts, and is unquestionably legal. of persons an order of the house, see p. 64. without In earlier times it was not the custom to prepare a Arrests formal warrant for executing the orders of the House of warrant. Commons: but the Serjeant arrested persons with the mace, without any written authority; 2 and at the present day he takes strangers into custody who intrude themselves into the house, or otherwise misconduct themselves, in virtue of the general orders of the house, and without any specific instructions. The Speaker has also directed the Serjeant to take offenders into custody (see p. 87). 3 The Lords attach and commit persons by order, without Attachment by any warrant. The order of the house is signed by the the Lords. Clerk of the Parliaments, and is the authority under which the officers of the house and others execute their duty. Wilful disobedience to orders, within its jurisdiction, is Breaches of privilegea contempt of any court, and disobedience to the orders and defined. rules of Parliament, in the exercise of its constitutional functions, is treated as a breach of privilege. Insults and obstructions, also, offered to a court at large, or to any of its members, are contempts; and in like manner, by the law of Parliament, are breaches of privilege. It would be vain to attempt an enumeration of every act which might be construed into a breach of privilege: but certain principles may be collected from the journals, which will serve as general declarations of the law of Parliament. Breaches of privilege may be divided into: 1. Disobedience to general orders or rules of either house; 2. 252, &c.; 1 C. J. 175. 680. 886 (1623 1 See precedents collected in App. (397), p. 104. 2 Bainbrigge's case, 29th Feb. 1575, 1 C. J. 109; 1 Hatsell, 92; 2nd Rep. Printed Papers, 1845, P. vi. 329 C. J. 23; 74 ib. 537; 85 ib. 461; 86 ib. 323; 88 ib. 246; 102 ib. 99. |