contact with the average intelligence of the nation in all its varied interests-the number of its members, who themselves are part of the general public, selected from a wide constituency, is such, that all the safeguards against usual error are here concentrated.1 A body so composed can with difficulty go wrong, or at least for any great length of time, and if it does so, the same may be said of all other bodies and all courts, which have fewer members and less abundance of counsellors. The privilege of Parliament is a prominent and settled part of the Constitution, and it is brought to bear with irresistible effect at all times where these high functions are impeded by third parties.

Privilege has usually been conceded to be essential to the supreme branch of the legislature-the grand inquest of the nation (as Coke called it), which has to defend itself against the encroachments of the Crown on the one hand and the injudicious or ill-intentioned attacks of individuals. on the other hand.2 Burke said, "People remain quiet, they sleep secure, when they imagine that the vigilant eye of a censorial magistrate watches over all the proceedings of judicature, and that the sacred fire of an eternal constitutional jealousy, which is the guardian of liberty, law, and justice, is alive night and day, and burning in the House of Commons."3

Jurisdiction of Parliament and courts of law contrasted. While it is said that Parliament is the exclusive judge of its own privileges, or rather of the limits of its own jurisdiction, it is not meant, as is sometimes supposed, that it claims to be omnipotent, and can at will arrogate to itself the whole powers of courts of justice and a great deal more. On the contrary, courts of justice have precisely the same difficulties as Parliament in determining the bounds of their power and authority, and this is always the most delicate of the subjects that can engage their

"The greatest security a people can have for their liberty is when the legislative power is in the hands of persons so happily distinguished, that by providing for the particular interests of their everal ranks they are providing for the whole body of the people, or, in other words, where there is no part of the people that has not a common interest with at least one part of the legislators."—Addison, Sect. No. 287.

16 Parl. Deb. 502; 38 Parl. Deb. (3) 1270. Hist. 49.

3 17 Parl.

attention, and the latest chapter of the law that can be comprehended aright. What is meant is, that Parliament has the same power to determine for itself what it can or cannot do what is and what is not its proper business—as the High Court of Justice itself, and each is indeed the sole exclusive judge on that point. Each is credited by the Constitution with sufficient intelligence, zeal, conscientiousness, and self-restraint to know what it is called upon and expected to do-how far to advance in any given direction, and when to stop; and no other power known to the Constitution can question their respective decisions. To say, that Parliament would ever be so foolish or ignorant as to undertake to recover debts or decide questions of title to land or goods is no greater and no less than to say, that the High Court of Justice will be so lost to reason as to substitute for a statute or an axiom of common law as its rule of conduct some other new and unheard of rule of its own devising.1 Each power has of necessity a wisdom of its own inherent in it, which operates like an infallible instinct.2 But the general work of Parliament lies altogether away from the general work of courts of law. The latter have, or are assumed to have, certain pre-ordained rules to guide them, and of which they are always vigilant and tenacious, while the former is incessantly occupied in amending the defects and oversights which are to be found in the best

1 "The House of Commons is a part of the High Court of Parliament, which is, without question, not merely a superior, but the supreme court in this country, and higher than the ordinary courts of law." (Lord Camden, Entinck v Carrington, 19 St. Tr. 1047.) "And if we give credit to the courts of common law, that they will not issue writs of attachment except in due course, and in accordance with the powers which the law gives them, and that notwithstanding the possible abuse of the liberty of the subject, to which this principle may give rise, by enabling a court to imprison for any cause, why should we not equally give credit to both branches of the High Court of Parliament, that they also will duly execute their powers in obedience to the law from which they derive them, and to which, in common with all other courts, they are subject, though this course may also possibly lead to the same consequences -the abuse of the liberty of the subject by their imprisoning any one at their mere will and pleasure? The possibility of abuse, which is urged as an objection to the power of either House to issue its mandate in such a form, is no valid argument against its existence." -Howard v Gossett, 10 Q. B. 457.

2 Per De Grey, C. J., re Crosby, 3 Wils. 202.

of those very rules. Parliament collects all kinds of evidence and knowledge useful to guide it in this elevated research. And no human employment can rank higher, for it assumes, that a definite law already has been tried and been found by the highest available wisdom to be wanting. The pursuit of a higher and still higher standard of laws than any yet found is the beginning and end of the vocation of Parliament-the most transcendent work of human intelligence and power. And yet in the exercise of their respective functions a court of law sometimes, as will shortly be seen, comes in conflict with Parliament, each in course of its proper business being, to a certain extent, seised naturally and legitimately of a particular subject matter, yet where it is impossible for each to have its way. These occasions are few and far between, but when they do occur it is absolutely necessary for one of the two to dispose exclusively of the subject. Both having equal wisdom, the test of precedence must depend entirely on which of them has the greater power allied to this equal wisdom, and Parliament, being acknowledged to be irresistible in its command of resources, is confessed, on that account alone, to hold the key of the situation.

Early instances of Parliament exercising its privileges. That there was some special law corresponding to what is now known as privilege of Parliament, was recognised at least as early as the reign of Richard II.1 and a series of precedents since that time.2 At first confused ideas of the connection of one thing with another pervaded the practice of Parliament, as they pervaded courts of justice sometimes for like reasons. Thus no one can now see, that any breach of privilege need be committed by a trespasser who took some ore from the mine of one of the members, or who broke his fences, or who poached his rabbits; and yet these acts, which the ordinary courts could satisfactorily punish, and which involved no reasonably close interference with the discharge of a member's duties, were punished as breaches of privilege. The occasions in which any conflict arises between Parliament and

3

1 11 Rich. II., 3 Rot. Parl. 244; 32 Hen. VI., 5 Rot. Parl. 239. Thompson's Case, 8 St. Tr. 50. 3 Grosvenor's Case, 2 Ap. 1733. 5 Admiral Griffin's Case,

Lord Barrymore's Case, 19 Jan. 1840. 16 Mar. 1759. 6 51 Parl. Deb. (3) 97.

courts of law will, however, be found more conveniently noticed on a subsequent page under the head of excusable libels—namely, where publications issued by the House are protected against all comers-though the courts were once disinclined to allow such protection. It is enough to say, that the commitment by the House of Commons on the Speaker's warrant is deemed conclusive evidence in every court of law, that the commitment is legal, if it merely state that it is for a breach of the privileges of the House without any further details. And it follows that its officers, who execute the warrant of commitment, are also free from punishment or liability. It is enough here to say, that it is no business of courts of law to inquire, whether the contempt or breach of privilege on which Parliament acts was really committed. And when a person so committed seeks at the hands of the court a release by habeas corpus, the courts can give no redress.5

3

The power of committal for breach of privilege.— A statute of 4 Henry VIII. c. 8, enacted, that all accusements, executions, fines, and punishments, and condemnations of members of Parliament should be utterly void. It is, however, unnecessary here to advert to all the privileges, as that which protects them from the abuses of free speech and thought in others is alone in question. The above statute was, it is true, said by Hale to be merely declaratory of the common law. This peculiar power,

4 Stock

1 See post, chap. ix. 2 Burdett v Abbot, 14 East, 1. 3 Burdett v Colman, 14 East, 163; Howard v Gossett, 10 Q. B. 359. dale v Hansard, 9 A. & E. 169, 195; Beaumont v Barret, 1 Moore, P. C. 76.

5 See 2 Pat. Com. (Pers.) 251. When a person was committed by Parliament for contempt of court, it was long frequently attempted to obtain his release by habeas corpus on application to a court of law, some illegality being put forward as a ground. LORD KENYON said, in 1799, that such attempts had been made every seven or eight years for the half century preceding that date. In a case of that kind, where the House of Lords had committed and fined a country editor, his release on habeas corpus was urged on three grounds-1. That the House of Lords had no power of imprisoning beyond the duration of the session, which the House of Commons clearly had not. 2. That the House of Lords had no power to impose a fine. 3. That it had no power to commit for a contempt committed out of the House. But all these points were overruled.-Re Flower, 27 St. Tr. 986.

6 Hale's Juris. Parlt. He said that it is "the lex et consuetudo

therefore, which is incident to the House of Commons, of punishing for contempt, though the House has no ordinary judicial powers, is said to rest on no other basis than the lex et consuetudo Parliamenti, which is as much part of the Constitution as any of the powers and privileges of the highest courts of justice.1 Thus if a serjeant of the House were sued for excess in executing its warrant, his conduct would be decided according to the law of Parliament and not according to common law rules.2 The power of the House of Commons is not, however, exercised with respect to libels on the Government generally, or on the state, but is confined to libels upon itself and its members.3 And yet, like ordinary courts of justice, its jurisdiction in early times sometimes extended beyond the just limits now settled. The first instance of a member being expelled from the House of Commons for libelling another member is said to have been that of Arthur Hall, in 1581, who was also fined and imprisoned as part of the same punishment.* This right of the House of Commons to commit strangers for contempt of Parliament or for breach of privilege, -which is usually in the form of libel on the House or a member-was exercised in the time of Charles I.5 The House also asserted the right in the case of the Kentish Petition. Between 1701 and 1774 there were thirty instances of such commitments.7 In the cases of Oliver and Crosby in 1771, two courts of common law recognised parliamenti that all weighty matters arising in Parliament concerning the Peers or Commons in Parliament should be discussed, determined, and adjudged by the Court of Parliament, and not by any other law used in any inferior court. Moreover, the king cannot take notice of anything said or done in the House of Commons but by report of the House of Commons; and every member in Parliament has a judicial place, and can be no witness. Every offence committed in any court, punishable by that court, must be punished in the same court or in some higher, and the Court of Parliament has no higher." -Ibid.

6

1 Kielley Carson, 4 Moore, P. C. 63; Fenton v Hampton, 11 Moore, P. C. 347; Dill Murphy, 1 Moore, P. C., N. S. 487. 2 Wilde, Serjt. H. C. 1843, 67 Parl. Deb. (3) 40. 3 16 Parl.

Deb. 500.

* D'Ewes, 291; Hatsell, 93; 1 Com. J. 125; Hall. Const. H. c. 5. In 1680 the House of Commons ordered a clergyman to be impeached for a seditious sermon, and all the precedents as to the power of the House to commit were then collected.-See 8 St. Tr. 1. 5 4 Inst. 23. 6 See ante, p. 35. 7 16 Parl. Deb. 291.