^^1 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OP THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 4940.J27 
 
 The power of Congress to punish contempt 
 
 3 1924 019 949 449 
 
Olorn^U Ham i>irl|aol Hibratg 
 
• 
 
 THE 
 
 POWER OF CONGRESS 
 
 TO PUNISH 
 
 CONTEMPTS AND BREACHES 
 OF PRIVILEGE. 
 
 BY 
 
 CHAELEB P. JAMES, 
 
 ^ « 
 
 Of the Washington Bat-. 
 
 WASHINGTON, D. C: 
 
 W. H. & O. H. MORRISON. 
 
 it 18 7 9. 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019949449 
 
THE 
 
 POWER OF CONGRESS 
 
 TO PUNISH 
 
 CHAELES P. JA_MES, 
 
 Of the Washington Bar. 
 
 WASHINGTON, D. C: 
 
 W. H. & O. H. MORRISON. 
 
 187 9. 
 
. "The powers of the legislature are defined and limited; and that 
 those limits may not be mistaken or forgotten, the Constitution is 
 •written. To what purpose are powers limited, and to what purpose is 
 that limitation committed to writing, if these limits may, at any time, 
 be passed by those intended to be restrained?" — Chief Justice Marshall, 
 in Marbury vs. Madison, 1 Cranch, 137. 
 
 Copyrighted, 1879, 
 By W. H. & O. H. MoEMSON. 
 
THE POWER OF CONGRESS TO PUNISH CONTEMPTS 
 AND BREACHES OF PRIVILEGE. 
 
 , . I. 
 
 A doubt; has iever ceased to exist in the minds of 
 many lawyers, notwitlistanding the decision in Ander- 
 son vs. Dunn, 6 Wheaton's Eep., 204, whether general 
 power to adjudicate and inflict punishment for con- 
 tempts and breaches of privilege, has been vested by 
 the Constitution in the Senate and House of Repre- 
 sentatives of the United States ; and expressions of 
 this doubt have been revived as often as any notice- 
 able instance of its exercise has attracted attention. 
 
 It has been felt that a claim of power affecting per- 
 sonal liberty, which is not referred to by any word in 
 the C onstitution, but is based wholly upon an impli- 
 cation from necessity, stands upon grounds which are 
 uncertain ; and that it has not been rendered un- 
 questionable even by long usage. A candid inquiry 
 into the sufficiency of these grounds seems, therefore, 
 not to be improper, or to come too late. It is hoped 
 that the following discussion preserves that character. 
 And it should be added, that such an inquiry recog- 
 nizes the necessity that these offenses should be pun- 
 ished ; it proposes nothing more than a consideration 
 of the provisions which the Constitution has made for 
 that purpose. It is incumbent upon any person who 
 
— 4 — 
 
 questions a power which assumes to be settled by 
 authority and practice, to exhibit at the outset, as 
 fully as possible, the argument in its behalf. Instances 
 of its exercise showing how early they began, and the 
 reasoning by which they have been vindicated, will 
 therefore be now presented. 
 
 On the 28th of December, 1795, upon information 
 given by several members in their places, of an attempt 
 made by one Robert Randall to corrupt them, the 
 House of Representatives directed the Speaker to 
 issue his warrant of arrest, and on the next day Ran- 
 dall was taken in custody. He was detained until the 
 6th of January, when the House, by a vote of seventy- 
 eight to seventeen, came to the following resolution : 
 " That it appears- to this House that Robert Randall 
 has been guilty of a contempt to and a breach of the 
 privileges of this House, by attempting to corrupt the 
 integrity of its members in the manner laid to his 
 charge." And thereupon it was resolved : " That the 
 said Robert Randall be brought to the bar, repri- 
 manded by the Speaker, and committed to the custody 
 of the Sergeant-at-Arms, until the further order of 
 this House." Pursuant to this resolution, Randall 
 was brought to the bar, reprimanded, and remanded 
 to the custody of the Sergeant, by ^hom he was de- 
 tained until the 13th of January, when he was dis- 
 charged by order of the House on payment of fees. 
 
 Five years later, in March, 1800, occurred the case 
 of William Duane. A bill had been introduced in 
 the Senate by Ross, of Pennsylvania, prescribing the 
 mode of deciding disputed elections of President and 
 Vice-President, of which the principal feature was the 
 
— 5 — 
 
 appointment by ballot of a joint committee of both 
 houses, with power to decide absolutely on the valid- 
 ity of any objections to any of the electoral votes. In 
 reference to this bill, Duane had charged in the 
 Aurora, a newspaper published in Philadelphia, that 
 it was got up by a secret caucus of Federal Senators, 
 who controlled all the proceedings of that body, with 
 the design to deprive Pennsylvania of her vote at the 
 ensuing presidential election. The Senate, upon the 
 report of a committee of privileges, to whom this 
 publication had been referred, resolved that it con- 
 tained " assertions and pretended information, respect- 
 ing the Senate and their proceedings," " false, defama- 
 tory, scandalous, and malicious, tending to defame the 
 Senate, and to bring them into contempt and dis- 
 repute, and to excite against them the hatred of the 
 good people of the United States, and that the said 
 publication was a high breach of the privileges of the 
 Senate." Having appeared at the bar in obedience to 
 a summons, Duane asked permission to be assisted by 
 counsel, which was granted, with the limitation that 
 they should be heard only as to such questions of fact 
 as might arise, or in excuse or extenuation' of his 
 offense. Dallas and Thomas Cooper, to whom he ap- 
 plied, declined to act as counsel, since they were not 
 to be allowed to dispute the constitutionality of the 
 proceeding. Duane, claiming that he was deprived, 
 under the restrictions which the Senate had seen fit 
 to impose, of all professional assistance, declined any 
 further voluntary attendance upon that body; and 
 the Senate voted that he was guilty of contempt in 
 refusing to appear; directing the Sergeant-at-Arms 
 to arrest him, and to hold him in custody until further 
 
— 6 — 
 
 orders. Hildreth's Hist, of the U. S., Vol. 2, p. 352, 
 2d Series. 
 
 This proceeding of the Senate performed substan- 
 tially the office of an ordinary prosecution for libel, 
 and their formally expressed resolution had, to a re- 
 markable degree, the ring of an indictment. 
 
 In January, 1818, another attempt to corrupt its 
 members was brought to the attention of the House 
 of Representatives. A member in his place informed 
 the House that John Anderson had attempted to bribe 
 him, with a' view to influence his action on certain 
 claims then pending there. Upon an unanimous vote 
 the Speaker issued his warrant, A;nderson was taken 
 into custody, and was subsequently brought to their 
 bar from time to time, as directed, until finally, on 
 the 16th of January, the House came to the following 
 resolution : " That John Anderson has been guilty of 
 a contempt and a violation of the privileges . af the 
 House, and that he be brought to the bar of the 
 House this day, and be there reprimanded by the 
 Speaker for the outrage he has committed, and then 
 discharged from the custody of the Sergeant-at-Arms." 
 
 On the 14th of April, 1832, the Speaker laid before 
 the House of Representatives a communication from 
 a member, stating that on the evening of the previous 
 day he had been attacked, knocked down by a blud- 
 geon, and severely bruised and wounded by Samuel 
 Houston, for words spoken in his place in the House. 
 Thereupon, the usual warrant was issued, and Houston 
 was taken in custody by the Sergeant-at-Arms. On 
 the 11th of May, it was resolved by the House : " That 
 Samuel Houston has been guilty of a contempt and 
 violation of the privileges of this House;" and on 
 
the same day the House passed a further resolution : 
 '" That Samuel Houston be brought to the bar of the 
 House on Monday next, at twelve o'clock, and be 
 there reprimanded by the Speaker for the contempt 
 and violation of the privileges of the House of which 
 he has been guilty, and that he be discharged' from 
 the custody of the Sergeant-a,t-Arms." 
 
 In March, 1848, John Nugent was summoned to 
 appear at the bar of the Senate as a witness ; and, 
 having appeared, he was sworn, but refused to answer 
 certain interrogatories then propounded to him. For 
 this refusal, he was adjudged to have committed a 
 contempt against the Senate, and was ordered into 
 the custody of the Sergeant-at-Arms, there to remain 
 until the further order of the Senate. 
 
 In January, 1857, J. W. Simonton was summoned 
 as a witness before a select committee of the House of 
 Kepresentatives, appointed to investigate charges that 
 members of that House had entered into corrupt 
 combinations for the purpose of securing the passage 
 of certain measures by Congress ; and during the 
 progress of the investigation, certain questions were 
 propounded to him, which he declined to answer. 
 The committee reported this fact to the House, the 
 Speaker was ordered to issue his warrant, and Simon- 
 ton" was immediately brought in custody to the bar. 
 After he had been heard in his own defense, the 
 House passed the following resolution : " Whereas, 
 J. W. Simonton having appeared at the bar of the 
 House, according to its order, and the cause assigned 
 for the said contempt being unsatisfactory, therefore-^ 
 Resolved, That the said J. W. Simonton be con- 
 tinued in close custody by the Sergeant-at-Arms, or, 
 
in his absence, by M:h' William G. Flood, during the 
 balance of this "session, or until discharged by the' 
 further order of tk6 Hotise, to be taken when he shall 
 have purged ihf. contempt on which he was arrested, 
 by testifying Afore the committee." 
 
 It is unnecessary, however, to set out all of the 
 instances of i%e exercise of this power. Enough have 
 been cited to show the kind of acts to which it has 
 been held by the two houses of Congress to extend, 
 and the manner of its use. It is proper, next, to 
 state the arguments by which the power has been 
 supported. 
 
 In Duane's case, notwithstanding counsel were not 
 allowed to discuss the constitutionality of the Senate's 
 proceedings, it was very fully discussed by senators 
 themselves. A brief abstract of the debate has been 
 preserved by Mr. Jefferson (Manual, Sec. 3). He 
 says : " In declaring the legality of this order, it was 
 insisted, in support of it, that every man, by the law 
 of nature, and every Jjody of men, possesses the right 
 of self-defense ; that all public functionaries are essen- 
 tially invested with the powers of self-preservation; 
 that they have an inherent power to do all that is 
 necessary to keep themselves in a condition to discharge 
 the trusts confided to them ; that whatever authorities 
 are given, the means of carrying them into execution 
 are given by necessary implication ; that thus we see 
 the British Parliament exercising the same power; and 
 every court does the same; that if we have it not, we 
 sit at the mercy of every intruder who may enter our 
 doors or gallery, and, by noise and tumult, render 
 proceeding in business impracticable ; that if our 
 
— 9 — 
 
 tranquillity is to be perpetually di^ilrbed by news- 
 paper defamation, it will not be possible to exercise 
 our functions with the requisite C(Mness^ and* deliber- 
 ation ; and we must therefore Jiave a pdker to punish 
 those disturbers of our peace and procBHings." 
 
 The commitment of John Anderso^ in 1818, was 
 followed by an action against the Serfeant-at-Arms 
 of the House of Representatives, for assault and 
 battery and false imprisonment, and at last the power 
 to punish for contempt became the subject of judicial 
 determination. Anderson vs. Dunn, 6 Wheaton, 204. 
 (1821.) 
 
 The defendant pleaded specially, in justification, a 
 resolution and a warrant, which set forth, in general 
 terms only, that the plaintiff had been guilty of a 
 breach of the privileges, and of a contempt of the 
 dignity and authority of the House of Representatives. 
 The legal effect of a mode of pleading which thus 
 omitted to state the nature of the contempt, and 
 whether it was committed in presence of the House 
 or elsewhere, was to set up a power to punish con- 
 tempts generally ; and this claim was conceded by 
 the decision of the Court. 
 
 Mr. Justice Johnson, delivering the opinion of the 
 Court, said: "It is certainly true, that there is no 
 power. given by the Constitution to either House to 
 punish for contempts, except when committed by 
 their own members. * * Such power, if it exists, 
 must be derived from implication." He then pro- 
 ceeded to state the reasons of the Court for imply- 
 ing it. 
 
 Briefly stated, his argument was, that the power to 
 punish this class of injuries belonged to those bodies 
 
— 10 — 
 
 ex necessitate, " on tlie principle of self-preservation." 
 And he proceeded to say : " In reply to the suggestion 
 that, on this same foundation of necessity, might be 
 raised a superstructure of implied powers in the 
 executive, and every other department and even 
 ministerial officer of the Government, it would be 
 sufficient to observe, that neither analogy nor prece- 
 dent would support the assertion of such powers in, 
 any other than a legislative or judicial bod/jf." 
 
 It was conceded in this opinion that no executive 
 officer could assume and exercise the power of punish- 
 ment, " on the principle of self-preservation ; " and it 
 was clearly held that a legislative assembly might , 
 assume and exercise it on that principle, because it 
 had been, determined by precedent to be " necessary" 
 to such bodies as a means of self-preservation. 
 
 Mr. Justice Johnson's language did not, it is true, 
 assume the form of an explicit statement of doctrine ; 
 but the inevitable effect of his position was, that each 
 house of our Congress was invested by the Consti- 
 tution with power to use, for the purpose of self- 
 preservation, whatever means the common law had 
 determined to be necessary to that end in the case of 
 legislative assemblies, .and that the cpnamon law had 
 determined the power to punish obstructors to be 
 necessary to such bodies. If his language should 
 seem to leave any uncertainty on this point, it should 
 be remembered that Mr. Justice Story, who also sat 
 in that case, evidently intended, in his Commentary, 
 to give the same reasons which had prevailed in 
 Anderson vs. Dv/nn; and his argument clearly sup- 
 ports this view of the case. He says : " Congress are 
 required to exercise the powers of legislation and 
 
— 11 — 
 
 deliberation. The safety of the rights of the Nation 
 requires this ; and yet, because it is not expressly said 
 that Congress shall possess the appropriate means to 
 accomplish this end, the means are denied and the 
 end may be defeated. * * * * jy^g ^y^^y ^ggor^ 
 to the common law to aid us in interpreting such 
 instruments and their powers ; for that law is the 
 common rule by which all our legislation is inter- 
 preted. It furnishes principles equally for civil and 
 criminal justice, for public privileges and private 
 rights. Now, by the common law, power to punish 
 contemps of this nature belongs incidentally to courts 
 of justice and to each house of Parliament. No 
 man ever doubted or denied its existence as to our 
 colonial assemblies in general, whatever may have 
 been thought as to. particular exercises of it." Story 
 on the Con., Sees. 845, 846. 
 
 It is a very grave matter to question the legality of 
 a practice which has continued froin the earliest days 
 of the Constitution to the present time, and the con- 
 clusiveness of the great authorities by which that 
 practice has been supported. 
 
 If the question had related to the interpretation of 
 particular terms in the Constitution, or to the extent 
 of any express grant of power, early and long con- 
 tinued practice would, without the help of judicial 
 decisions, have been conclusive. And if the grounds 
 on which the power was rested by the decision referred 
 to, had not, since that time, been re-examined by the 
 tribunals of the country from which this doctrine has 
 confessedly been borrowed, and been shown not to have 
 been the basis on which it stood in England, nor to 
 
12 
 
 have constituted a general conclusion as to legis- 
 lative assemblies, and to be therefore incapable to 
 support the assumption of such power by any other 
 'legislative assemblies than the houses of Parliament, 
 the question here discussed would have been regarded 
 as closed by judicial authority. But, inasmuch as this 
 claim of power has been based, not upon the interpre- 
 tation of phrases, but upon general principles which 
 are independent of forms of expression, and of any 
 express grant, it is conceived that long practice is not 
 conclusive. And inasmuch as the question which 
 came before the English tribunal was substantially 
 identical with the question considered in Anderson vs. 
 Dunn, and has been differently decided, after the most 
 deliberate reconsideration, it is hoped very sincerely 
 that there is no disrespect to our own great tribunal 
 in examining the argument as a question fairly open 
 to discussion. As the result of such an examination 
 it is proposed, in the following remarks, to show : 
 
 1st. That on general principle, the power to punish 
 contempts cannot be implied as a power of self-pro- 
 tection, in the case of a legislative assembly. 
 
 2d. That the power of the House of Commons to 
 punish for contempts does not stand upon the ground 
 that it is necessary to a legislative assembly, as a power 
 of self-protection ; and that its exercise by that body 
 never established a conclusion of the common law that 
 such a power was necessary to legislative assemblies. 
 
 3d. That if such a conclusion of the common law 
 had existed, it would have been of no force in deter-" 
 mining whether a similar power has, by implication, 
 been granted to each house of our Congress. 
 
 4th. That, if such an implication might have been 
 
— 13 — 
 
 made on that ground, in tlie absence of any provision 
 of the Constitution forbidding it, that implication has 
 in fact been forbidden by affirmative provisions of that 
 instrument. 
 
 "We have first to consider the general principle on 
 which the right of a party to take measures against 
 other persons, for the purpose of self-protection, is 
 based. The following is submitted as an analysis of 
 that principle. 
 
 The possessor of a right, whether a private person, 
 a functionary, or a body of functionaries, is entitled 
 to its complete enjoyment, and is therefore entitled to 
 have, in some way, remedies of protection adequate to 
 secure such enjoyment. It is a principle of social 
 organization that, primarily, the duty and power to 
 provide remedies of protection belong to the organiza- 
 tion itself, as sovereign over all its constituents ; and 
 does not belong to any of its constituents except with 
 its consent. 
 
 Whether such primary power has been transferred 
 to, and may be exercised by any person or body of 
 persons subject to the sovereignty, is simply a ques- 
 tion of fact ; and the fact of transfer or permission may 
 be either expressed or implied. An implication that 
 it may be thus exercised may be made on the following 
 grounds : In order to secure complete enjoyment of a 
 right, there must be remedies adapted to secure it from 
 interruption or obstruction even for a single moment ; 
 that is to say, from being injured at all. A function- 
 ary or body of functionaries is entitled, therefore, to 
 remedies which shall instantly put a stop to an ob- 
 struction which is occurring, or actually and directly 
 
— 14 — 
 
 prevent one that is threatened. For example, they are 
 entitled to have persons who are obstructing their 
 functions at once removed, and to have persons who 
 menace such obstructions excluded. But, to require 
 a functionary who is- suffering an obstruction, or who 
 is likely to be interrupted, to invoke, for this kind of 
 protection, an external interference, would be to re- 
 quire him to suffer the obstruction meantime, until 
 that interference could be brought into action ;• and 
 would therefore be to deny him an adequate remedy. 
 Indeed, to just the extent of such enforced endurance, 
 .his right not to be injured at a// would be without any 
 remedy. Since, then, he is entitled to a remedy which 
 shall instantly arrest or perfectly prevent the injury, 
 and since his own hand can furnish that remedy while 
 no other agency can, it follows that the party himself 
 is authorized to provide and apply remedies of this 
 kind. His right to do so is implied from two facts : 
 that he is entitled to an instant cessation of injury ; 
 and that the law which established him as a function- 
 ary, cannot in any other way furnish him a remedy 
 adequate to that end. In other words, his authority 
 arises ex necessitate. 
 
 In illustrating this right by example, we have ad- 
 duced a case in which it accrues because remedies from 
 an external source arrive too late. It is conceded, 
 however, that the principle is broad enough to include 
 cases where the only remedies which the law is capable 
 of applying by an external agency, are, in contempla- 
 tion of law, inadequate for any other reason. The 
 probability of such cases is a matter which it is not 
 necessary to determine. We shall therefore proceed 
 upon an assumption that the right of self-protection 
 
— 15 — 
 
 stands upon the ground, that the remedy to which the 
 party is entitled cannot be furnished or applied ad- 
 equately in any other way. 
 
 The principle here stated is relied upon because it is 
 found in every civilized system of jurisprudence, and 
 is not peculiar to the common law. In that law itself 
 it is enunciated as a principle of universal recognition. 
 Blackstone, in speaking of the right of self-defense, 
 says : " It [the law] considers that the future process of 
 law is by no means an adequate remedy for injuries 
 accompanied by force ; since it is impossible to say to 
 what wanton lengths of rapine or cruelty, outrages of 
 this sort might be carried unless it were permitted a 
 man immediately to oppose one violence with another. 
 Self-defense, therefore, as it is justly called the primary 
 law of nature, so it is not, neither can it be in fact, 
 taken away by the law of society." 3 Bl. 4. And in 
 speaking of the right of a party to abate certain kinds 
 of nuisances, he says : " The reason why the law allows 
 this private and summary method of doing one's self 
 justice, is because injuries of this kind, which obstruct 
 or annoy such things as are of daily convenience or 
 use, require an immediate remedy, and cannot wait 
 the slow progress of the ordinary forms of justice.'' 
 
 And Kent says : " The municipal law of our own 
 country, as well as of every other country, has left 
 with individuals the exercise of the natural right of 
 self-defense, in all those cases in which the law is either 
 too slow or too feeble to stay the hand of violence." 2 
 Kent, 15. 
 
 Since this principle is of universal authority, it must 
 apply to functionaries under our Constitution, and 
 must determine the extent of their power to use 
 
— 16 ~ 
 
 measures of self-protection in the discharge of their 
 functions. 
 
 It is important, before proceeding to apply it to the 
 matter in question, to recapitulate the elements which 
 unite in constituting the right to do any 'particular 
 act for the purpose of self-protection. 
 
 As shown by the recognized operation of the princi- 
 ple, they are as follows : 
 
 First, the act to be done for that purpose must 
 operate immediately and directly upon the injury 
 against which protection is sought ; being permitted 
 on the very ground that it is necessary as the only 
 means of actually saving the party from being injured 
 at all. Secondly, it must appear that it is his in- 
 herent right that the particular act which he under- 
 takes to do, should be done by some agency. Thirdly, 
 it must appear that this remedy cannot be applied 
 adequately by any other hand than his own ; in other 
 words, that there is a necessity, in contemplation of 
 law, that he shall have power to apply it himself. 
 
 Assuming these to be the elements of the principle 
 of self-protection, we have next to consider whether 
 power- to punish comes within that principle. 
 
 It is obvious, in the first place, that punishment 
 has no direct action upon injuries, whether past or 
 future. It does not pretend to undo the past injury 
 on account of which it is inflicted ; it has regard only 
 to the future, and to possible injuries. But, even as 
 to these, it is only an abuse of words to call it a pre- 
 ventive, in the sense required by the principle of 
 self-protection. Undoubtedly it is characterized in 
 the language of social science as a preventive of 
 wrongs ; but it is not regarded even by that science, 
 
17 
 
 much less by J3te law, as having any direct operation 
 toward thatjj^p, or any intrinsic capacity to attain it. 
 Its only ^®ct' operation is to give warning; to teach 
 a lesso]3.,;^Tand that lesson may, or may not, have 
 the secondary e£fect of diminishing the disposition 
 of wrong-doers to commit injuries. Self-protective 
 remedies are permitted on the ground that they are 
 necessary to the actual saving of the party from being 
 injured; but the capacity, even the tendency of 
 punishment to avert injuries, depends upon the im- 
 pressionability, the imagination, the audacity, the 
 intelligence, of the persons who are to be warned and 
 instructed by it. It may be inflicted without even 
 touching the result that was hoped for ; and the end 
 proves that its office is not actual prevention. Since, 
 then, it operates upon something else than the injury, 
 and is only an educational instrument, calculated to 
 achieve its purpose, not by necessary but only by 
 probable reaction upon the inclination to injure, and 
 thereby upon the injury itself, it cannot be deemed a 
 remedy of self-protection from injury. The latter 
 authorizes a party to deal with a situation, with the 
 wrong which is upon him, or which is approaching ; 
 all secondary methods belong to the sovereign, 
 whether a monarch or a community. 
 
 In the next place, the principle of self-protection 
 requires that the party should have an inherent right 
 that the particular act which he undertakes to do, as 
 a remedy, should be done by some agency, either 
 public or private ; and it is not an inherent right of 
 an injured party that any particular injury should be 
 punished. Whether a particular kind of injury shall 
 be subject to any punishment, and if so in what 
 
— 18, — 
 
 manner, is essentially a matter • of polity, of public 
 discretion ; not a matter upon which there can be a 
 foregone conclusion of law. There are very many 
 injuries for which every society deliberately omits to 
 provide any punishment. We have a peculiarly ap- 
 propriate illustration of this discretion, in the fact to 
 which we shall have occasion to refer in another part 
 of this discussion, that Congress has abolished all 
 punishment for certain injuries which were once 
 punished as contempts of the judicial power of the 
 United States. On the other hand, it is observable 
 that, for those acts which, are punished in alF com- 
 munities, the penalties have always varied in degree 
 and method, according to ,the circumstances and 
 tempers of those communities. In a word, the im- 
 memorial and universal practice of mankind has 
 determined that punishment waits upon the judgment 
 and decision of the law-maker, and that it is not to 
 be applied at all, whether by public tribunals or by 
 the hand of the injured party, until the law-maker 
 has prescribed the injuries for which, and the manner 
 in which, it shall be applied. If then, the question 
 whether a particular kind of injury shall be punished 
 at all, is essentially a question of polity, of sovereign 
 discretion, it is impossible that power to inflict punish- 
 ment should be implied as a power of self-protection, 
 accruing ex necessitate. 
 
 Finally, power to punish cannot be claimed as a 
 remedy of self-protection on the ground that this 
 remedy will be, in contemplation of law, inadequate, 
 unless it may be applied by the hand of the injured 
 party. 
 
 The ground on which self-protective remedies are 
 
— 19 — 
 
 fiaost commonly permitted is, tliat tlie same remedies 
 applied by any external agency, must arrive too late ; 
 that is, after the injury has been accomplished, or un- 
 duly protracted. It is sufficient to say that the 
 remedy of punishment necessarily arrives after the 
 injury has been accomplished, whether it is employed 
 by the party or by the common tribunals. As this 
 fact ig not altered by permitting the party to exercise 
 the power, no necessity arises that he should be sub- 
 stituted for the common tribunals. 
 
 This somewhat elaborate analysis of the general 
 principle of self-protection, which is commonly stated 
 very briefly, has been deemed important, in order to 
 show how many considerations must be overcome by 
 a party who claims that power to punish is, in any 
 particular case, a power of self-protection. A com- 
 plete reconsideration of a familiar principle sometimes 
 becomes necessary, for the purpose of demonstrating 
 how grave a matter it is to alter its boundaries. 
 
 It has been assumed, in making this analysis, that 
 the ordinary principle of self-protection both estab- 
 lishes and limits that right, just as much in the cases 
 of the separate houses of Congress, as in the cases of 
 other functionaries of the Government ; unless the 
 self-protective powers of the former are distinguished, 
 by implications of the Constitution, from those of the 
 latter. This was substantially conceded in Anderson 
 vs. Dunn, and the reasoning of the Court was intended 
 to establish that distinction. We have, therefore, to 
 consider next, whether the Constitution does im- 
 ply a greater necessity and a larger extent of self- 
 protective power in the cases of our legislative 
 functionaries. 
 
— 20 — 
 
 It had been urged by counsel, in Anderson's case, 
 tbat if the principles of self-preservation conferred 
 the power of punishment upon, the House of Repre- 
 sentatives, they conferred it equally upon the " execu- 
 tive, and every coordinate, and even subordinate, 
 branch of the government." Mr. Justice Johnson, 
 in answer to this proposition, said : " But what is the 
 alternative? The argument leads to the tptal annihi- 
 lation of the power of the House of Representatives 
 to guard itself from contempts, and leaves it exposed 
 to every indignity and interruption that rudeness, 
 caprice, or even conspiracy, may meditate against it." 
 So in Duane's case, it had been said by Senators : 
 " If we have it not [namely, the power to punish], we 
 sit at the mercy of every intruder who niay enter our 
 doors or gallery, and, by noise and tumult, render 
 proceeding in business impracticable. If our tran- 
 quillity is to be perpetually disturbed by newspaper 
 defamation, it will not be possible to exercise our 
 functions with the requisite coolness and deliber- 
 ation." And the learned Commentator on the Consti- 
 tution has declared that " It is obvious that unless 
 such a power, to some extent, exists by implication, 
 it is utterly impossible for either House to perform its 
 constitutional functions." Story on the Con., Sec. 
 845. 
 
 If it were true that, unless the power to inflict 
 punishment may be exercised by the House itself, 
 neither House can perform its functions, it would be 
 difficult to resist an implication that such power is 
 conferred by the Constitution ; for each House must 
 perform its functions. But it is submitted that the 
 assertions which have been quoted are simply not 
 
— 21 — 
 
 true. It can be shown, on the contrary, that, without 
 assuming to themselves any such power, those bodies 
 may be perfectly and adequately protected. 
 
 In the first place, each House has, upon the prin- 
 ciple of self-protection, authority to remove and 
 permanently "exclude persons who interrupt its pro- 
 ceedings, or are guilty of indecorum in its presence ; 
 and, as it may be provided with such officers as it 
 may need, it may be surrounded with a force which 
 cannot fail to make that power efficient. If it should 
 be found necessary, it may even close its doors and 
 galleries at all times against all persons but its own 
 members and officers. And, as a matter of fact, this 
 admitted right of self-protection has been found to be 
 effective and sufficient for the suppression of every 
 disorder which intruders may create. But power to 
 expel and shut out an intruder is not power to punish. 
 
 In the next place, it is not true that these bodies 
 must go without that protection which punishment 
 may affi^rd, unless they may inflict such punishment 
 with their own hands. It can be shown that the 
 Constitution authorizes other instrumentalities by 
 which any offense against them may be punished, 
 and that, in contemplation of that instrument — and 
 this must be the conclusive test — punishment so 
 applied is adequate to their protection. 
 
 Congress has power to pass "all laws necessary 
 and proper for carrying into, execution " any of the 
 powers granted to any department of the government; 
 and, among them, the power of its several houses to 
 perform their respective functions. It is settled that 
 this clause authorizes Congress to provide for the 
 punishment of auy wrong whatever which obstructs 
 
— 22 — 
 
 or impairs the functions of any of these departments ; 
 and the Constitution provides the instrumentalities 
 by which such punishmeftt may be awarded and 
 inflicted. It declares that the judicial power of the 
 United States shall be vested in one Supreme Court, 
 and in such inferior courts as Congress may, from- 
 time to time, ordain and establish ; and that this 
 judicial power shall extend to all cases, in law or 
 equity, arising under the Constitution or laws of the 
 United States. Under these provisions, every act 
 which the several houses of Congress have claimed 
 power ex necessitate to punish as a contenipt, may be 
 made an offense, and may be punished through the 
 instrumentality of the courts of justice. 
 
 That it is at least lawful to apply this agency to 
 the protection of those bodies, has not been disputed. 
 It was distinctly admitted by the Court, arguendo, 
 in Anderson vs. Dunn, and it has been afiirmed by 
 Congress itself. 
 
 The Act of February, 1853 (10 Stat. 171), declared 
 an attempt to bribe a member of either House— the 
 very offense for which, under the name of contempt, 
 Anderson had been punished thirty-five years before 
 — to be a high crime and misdemeanor, subject to 
 indictment and punishable by fine and imprisonment. 
 And the Act of January, 1857' (11 Stat. 155), 
 provided that the refusal of a witness, when sum- 
 moned before either House, to answer questions perti- 
 nent to the matter under inquiry there — an act which 
 both houses assume to punish as, a contempt — should 
 be subject to indictment and punishable by imprison- 
 ment in a common jail. 
 
 It is a settled proposition, then, that these bodies 
 
23 
 
 may, at least, be protected, through the agency of 
 statutes and the courts of justice, against injuries 
 which constitute contempts. The question is solely, 
 therefore, whether this agency must be inadequate. 
 And in determining this question, it is to no purpose 
 to point out practical difficulties in framing a proper 
 statute. 
 
 Mr. Justice Johnson assumed that, from their very 
 nature, " the offenses which may be denominated con- 
 tempts * * * admit of no precise definition," and 
 evidently concluded that a legislative attempt to 
 provide for their punishment would, therefore, be 
 impracticable. It is sufficient answer to say, that, 
 although it may be difficult, it is never impracticable 
 to define by statute every act which it is desirable to 
 punish as an offense. But it is unnecessary to do 
 so ; for general words would suffice to describe such 
 offenses. The Judiciary Act, in giving to the Courts 
 of the United States authority to punish this class 
 of injuries, described them simply as " contempts of 
 authority ; " and the Crimes' Act of 1790 included a 
 variety of acts under the word " obstructing," when it 
 provided punishment for unlawful interference with 
 service of process. It is not necessary, therefore, to 
 specify every act which may constitute a contempt; 
 nor would such a necessity, if demonstrated, show 
 that legislative definition is impracticable, and there- 
 fore inadequate. It may be added, that an implied 
 necessity for a particular jurisdiction over certain 
 matters, on the very ground that the wisdom of the 
 law-maker cannot define them, sounds strangely. 
 
 It appears, then, that the ordinary means of afford- 
 ing protection by means of punishment, need not be 
 
— 24 — 
 
 inadequate because the occasions for punishment arfe 
 prescribed by express statute. It only remains to 
 inquire whether the ordinary constitutional means 
 of administering punishment so provided, must be 
 inadequate. 
 
 It seems to have been assumed that, by a necessity 
 of which the law must take cognizance, legislative 
 bodies are entitled to remedies of protection suitable 
 to their dignity and convenience ; and that it is not 
 suitable to either that they should be obliged to call 
 upon the judicial tribunals to punish offenses against 
 them. Of course, this assumption can only be set 
 up as a,n intendment of the Constitution ; since we 
 are dealing with those intendments in determining 
 whether the houses of Congress have this power by 
 implication. 
 
 As a matter of fact, this notion that an appeal to 
 Other tribunals did not comport with the dignity or 
 convenience of a supreme legislature, is of English 
 origin. Lord Coke and his early successors used to 
 talk of the privileges and powers of Parliament as 
 something which, so far from assuming to protect 
 them, the common law courts might not even presume 
 to know ; and even when the ordinary courts of 
 justice came to assert a right to determine what those 
 privileges were, in a case which should enable them to 
 reach the question, they still deemed the protection of 
 them to be a matter not merely out of but above their 
 sphere. Only eleven years before the decision of 
 Anderson's case, Lord Ellenborough, in the great 
 case of Burdett vs. Abbott, 14 East, 1, said : " Could 
 it be expected that they should stand high in the 
 estimation and reverence of the people, if, whenever 
 
— 25 — 
 
 they were insulted, they were obliged to wait the 
 comparatively slow proceedings of the ordinary course 
 of law for their redress? That the Speaker with his 
 mace should be under the necessity of going before 
 the grand jury to prefer a bill of indictment for the 
 insult offered to the House?" This sentiment very 
 naturally seized upon the imagination of other judges ; 
 but with the great lawyers of Lord Ellenborough's 
 own time, the prevailing argument against an appeal 
 tothe or dinary tribunals for protection of privilege 
 was, not that such an appeal was inconsistent with 
 the dignity and convenience of so high a body as 
 Parliament, but that Parliament was itself a High 
 Court, superior to all other courts of the realm, and 
 that there was a legal inconsistency in a resort by a 
 higher to a lower court fbr protection. 
 
 Lord Ellenborough's melo-dramatic picture of what 
 would have been a very simple proceeding — and the 
 judicial method might have been rendered more simple 
 and more expeditious in any degree that Parliament 
 might deem convenient — was alarming enough to 
 eveiry one who inclined to believe that all English 
 institutions were necessary ; and very likely it was 
 true that the House of Commons, by laying off its 
 power to punish offenders against its dignity, and 
 thus losing a part' of its terrors, would have suffered 
 a temporary loss of prestige. But it is difficult to 
 perceive how such considerations could demonstrate 
 that kind of necessity of which a court must take 
 judicial cognizance, and from which it must make a 
 legal implication of power. They belong to the 
 domain of polity, not to that of jurisprudence. Not- 
 withstanding the peculiar position of Parliament in 
 
26 
 
 the British Constitution, they were, as a matter of 
 law, insufficient ground for the assumption of such 
 power by the House of Commons. 
 
 But whatever notion Englishmen may have had, 
 as to the powers which dignity made essential to their 
 legislative assemblies, that notion is not to he imported 
 and made a source of power here, unless it is counte- 
 nanced by our Constitution. For it cannot be too 
 often repeated, we are dealing only with the intend- 
 ments and implications of that instrument. 
 
 The first reflection which suggests itself, on turning 
 to its provisions, is, that a construction which finds 
 there an implication that methods of protection which 
 are consistent with the dignity and convenience of the 
 Executive, are not consistent with those of the Legis- 
 lature, is not to be stated dogmatically, nor accepted 
 without the m6st careful consideration. It is con- 
 ceived that, on the contrary, all of -the implications of 
 the Constitution are that the Legislature is not placed, 
 by any exigencies of dignity or convenience, above 
 the application of the common means of protection. 
 
 All departments of this Government are the 
 creatures of the Constitution, dependent upon it for 
 existence or power, co-ordinate and independent in 
 operation, equally indispensable to the action of the 
 Government. It is an implication of that supreme 
 law that all of them shall be protected in the,exercise 
 of their functions, and that protection of one indis- 
 pensable department is as essential as protection of 
 another. Methods of protection, by means of punish- 
 ment, which are lawfully applicable to all of them, 
 have been expressly authorized by it, and to some of 
 them no others can be applied. Is it not an intend- 
 
— 27 — 
 
 ment of a law which provides expressly one method, 
 and only one method, by which remedies of protection 
 may be applied, that it has not only provided it for 
 common use, but as a method which is suitable and 
 adequate to common use ? Before any department of 
 the Government can deny this implication, and can 
 say that the common means of protection, although 
 intended to be used in its behalf, were not regarded 
 by the Constitution as sufficient -in its case, it must 
 point out affirmative proof that it is distinguished and 
 placed above the others in dignity by that instrument. 
 Such a relation to the other co-ordinate agencies of 
 the common sovereign is not to be assumed ; it must 
 be found in the law which established all of them. 
 And whether it is to be found there, does not depend 
 upon the impression which the departments may make 
 upon the imagination, nor even upon the comparative 
 importance and gravity of their functions. As bodies 
 which participate in the making of laws by which 
 the other agencies of government are bound, these 
 assemblies may seem to exercise a superior function, 
 and thus to be themselves superior. But a law is 
 naught unless it is enforced ; and when they carefully 
 distributed these functions, the authors who prescribed . 
 them said : " We alone are sovereign ; you are only our 
 equal agencies, equally important, equally entitled to 
 protection, and by equal means." 
 
 The subordinate ground on which a necessity for 
 this power has sometimes been implied — namely, 
 that, in order to meet the convenience of legislative 
 assemblies, punishment must be summary, and there- 
 fore must be applied by themselves, is hardly worthy 
 
— 28 — 
 
 of discussion. How did it become a necessity that 
 the punishment of this particular class of wrongs 
 should he swifter than all other punishments ? When 
 the Constitution is content that even the most perilous 
 wrongs, aimed directly at the life and safety of the 
 whole Nation, such as treason or the counterfeiting 
 of the public securities, shall be triable only upon 
 indictment and by a jury, it would be a strange 
 implication that the same instrument held it to be 
 necessary that a mere insult, or a temporary obstruc- 
 tion offered to a part of the legislature, should be 
 punished without trial and without deliberation, in 
 order to be punished effectively. The fact is, that 
 the argument simply confounds consequence with , 
 cause. When a legislative body undertakes to ad- 
 minister punishment, its proceedings are inevitably 
 summary. It is itself the accuser, the prosecutor, and 
 the judge. It has no forms of trial, and, as none but 
 its own members take part in its deliberations, it 
 affords no standing, except by grace, for counsel or 
 defence. The jurisdiction to punish, therefore, was 
 not assumed in order that punishment might be sum- 
 mary, but punishment was summary because the juris- 
 diction was exercised by a body which must proceed 
 in that way. 
 
 It is not pretended that there is any novelty in 
 these arguments against an extraordinary power. 
 They would have been urged with less confidence if 
 they were. They were pressed upon the attention of 
 Congress long ago in Duane's case, with an ability 
 and force which cannot be surpassed ; and we cannot 
 do better than to present the recapitulation of them 
 
— 29 — 
 
 which has been left us by Mr. Jefferson. It was 
 urged in the Senate, "that Congress have no such 
 natural or necessary powers, but such as are given to 
 them by the Constitution; that it has given them, 
 directly, exemption from personal arrest, exemption 
 from question elsewhere for what is said in their 
 house, and power over their own members and pro- 
 ceedings ; for these no further law is necessary, the 
 Constitution being the law ; that, moreover, by that 
 article of the Constitution which authorizes them ' to 
 make all laws necessary and proper for carrying into 
 execution ' the powers vested by the Constitution in 
 them, they may provide by la-v^ for an undisturbed 
 exercise of their functions ; for example, for the 
 punishment of contempts, of affrays or tumults in 
 their presence, &c. ; but, till the law be made, it does 
 not exist, and does not exist from their own neglect ; 
 that, in the meantime, however, they are not unpro- 
 tected, the ordinary magistrates and courts of law 
 being open and competent to punish all unjustifiable 
 disturbances and defamations ; and even their own 
 sergeant, who may appoint deputies ad libitum to aid 
 him, is equal to small disturbances ; that in requiring 
 a previous law, the Constitution had regard to the 
 inviolability of the citizen as well as of the member ; 
 as, should one house, in the regular form of a bill, 
 aim at too broad privileges, it may be checked by the 
 other, and both by the President; and also as, the 
 law being promulgated, the citizen will know how to 
 avoid offence. But if one branch may assume its own 
 privileges without control, if it may do it on the spur 
 of the occasion, conceal the law in its own breast, and, 
 after the fact committed, make its sentence both the 
 
— 30 — 
 
 law and the judgment on that fact ; if the offence is 
 to be kept undefined, and to be declared only ex re 
 nata, and according to the passions of the moment, 
 and there be no limitation either in the manner or 
 measure of the punishment, the condition of the citizen 
 would be perilous indeed." Jeff, Man., Sec. 3. 
 
 It has been observed that this re-examination of a 
 question which has been judicially determined, would 
 not have been undertaken, had not the grounds on 
 which that decision was partly based been since dis- 
 approved by other tribunals of high authority. That 
 observation referred to English decisions, which wUl 
 be cited in their proper place. But it may be re- 
 marked at this point, that the conclusiveness of An- 
 derson^ s case has been impliedly questioned by a very 
 high authority in our own country. 
 
 In 1860 the case of Sanborn vs. Carlton, 15 Gray, 
 399, occasioned a very full discussion, before the 
 Supreme Court of Massachusetts, of the power of the 
 Senate of the United States to commit for contempt. 
 The case was disposed of on other grounds, without a 
 decision of that question ; but the remarks which 
 Chief Justice Shaw may be said to have seized oppor- 
 tunity to make, indicate plainly that, in the opinion 
 of that very great judge, the whole matter was open 
 to further discussion, and that he by no means re- 
 garded the authority of Anderson vs. Dunn as con- 
 clusive. He said : 
 
 " This question is a very broad and important one, 
 and opens many interesting questions as to the func- 
 tions and power of the United States Senate, as a 
 constituent part of the executive and legislative de- 
 
— 31 — 
 
 partments of the United States Government, and the 
 modes in which they are to be exercised, and the 
 limits by which they are qualified. 
 
 " It is admitted in the arguments that there is no 
 express provision in the Constitution of the United 
 States, giving authority in terms ; but it is maintained 
 that it is necessarily incident to various authorities 
 vested in the Senate of the United States, in its legis- 
 lative, executive, and judicial functions, and must 
 therefore be held to be conferred by necessary impli- 
 cation. 
 
 "These questions manifestly requiring great de- 
 liberation and research, in order to come to a satis- 
 factory conclusion, and some preliminary questions 
 having been suggested by the petitioner's counsel, it 
 was proposed, and not objected to by the learned 
 District Attorney and Assistant District Attorney of 
 the United States, by whom the court were attended 
 in behalf of the respondents, to consider these pre- 
 liminary questions first ; because, if the objections, on 
 the face of them, were sustained, it would supersede 
 the necessity of discussing the other questions arising 
 in the case." 
 
 The learned and careful judge who made these 
 observations, would hardly have spoken of the question 
 of incidental power, as one " requiring great delibera- 
 tion and research, in order to come to a satisfactory 
 conclusion," and have intiniated, as he did, an in- 
 tention to discuss that question, in case he should not 
 sustain the preliminary objections, had not the reason- 
 ing and judgment in Anderson vs. Dunn failed, in his 
 opinion, to furnish a satisfactory conclusion. 
 
 Before we proceed to the next branch of this 
 
— 32 — 
 
 inquiry, it should be repeated that, in order to base 
 this power upon an implication from necessity, it must 
 appear that such necessity exists in the judgment of 
 the Constitution. It would so exist if the general 
 principle of self-protection included power to inflict 
 punishment ; or if, by any express provision of that 
 instrument, or by its omission to afford other means 
 of protection, an implication might be made that it 
 conceded, in the case of the two houses of Congress, 
 a necessity for larger and peculiar power, for the 
 purpose of self-protection. But the general principle 
 of self-protection does not include power to punish, 
 and we have not found in the Constitution any indi- 
 cation that it distinguishes between the necessities of 
 those bodies, in the . matter of protection, and the ne- 
 cessities of other functionaries. One more ground, on 
 which this intendment of a larger necessity has been 
 based, remains to be considered. It has been claimed, 
 namely, that the Constitution must have intended 
 that the legislative assemblies created by it, should 
 have such power as precedent had established to be 
 necessary to such bodies^ and that precedent had 
 established such a necessity in regard to the power 
 in question. 
 
33 
 
 II. 
 
 It has been assumed that, at the time of the adoption 
 of the Constitution of the United States, the existence 
 of such a necessity had become a conclusion of law 
 by force of precedents supposed to be had in view by 
 the framers of that instrument. This was substantially 
 the meaning of Mr. Justice Johnson, when he said •' 
 " In reply to the suggestion that, on this same foun- 
 dation of necessity, might be raised a superstructure 
 of implied powers in the executive and every other 
 department, and even in ministerial officers of the 
 Government, it would be sufficient to observe, that 
 neither analogy nor precedent would support the 
 assertion of such powers in any other than a legis- 
 lative or judicial body." Of course, he meant that 
 precedent did support and establish the assertion of 
 the necessity in the latter cases. 
 
 This use of precedent has been more explicitly y 
 stated by Mr. Bishop, in his work on Criminal Law. 
 He says : " As a matter of natural reason, we know » 
 that a court of justice and a legislative body must 
 alike be entrusted with the means to preserve order ; 
 else neither the one nor the other could do its busi- 
 ness. But by what means? This is a question on 
 which men will differ ; therefore the law steps in and 
 points to ' immemorial usage,' and says, that the power 
 which has been immemorially exercised shall be taken 
 as the measure of necessity in the case. In other words 
 and to apply the proposition to the case in. hand, the 
 law says that the power which the House of Commons 
 
 5 
 
— 34 — 
 
 has exercised, in cases of contempts of its authority 
 and of the privileges of its members — conceded to be 
 just on ^all hands — from the beginning of things, is 
 the law's measure of what is necessary and proper to 
 be possessed by a legislative body similarly situated." 
 Bishop, Crim. Law, Vol. 2, Sec. 249, note 4 (Ed. 
 1872). 
 
 This passage referred to the implied powers of 
 colonial assemblies, and of the State Legislatures ; but 
 the same reasoning, as we 'have seen, has been applied 
 to the houses of Congress. The argument in the 
 latter case has claimed substantially that, when the 
 Constitution gave to these bodies, by implication, 
 whatever powers were necessary to the exercise of 
 their functions, it had been determined in an authori- 
 tative manner that power to punish contempts offered 
 them was necessary to that end. Practically, the 
 meaning of this proposition was, that the common 
 law had determined that .the power which it gave to 
 the House of Commons was necessary to a legislative 
 assembly. 
 
 It is plain that this example, imitated by legislative 
 assemblies in this country before the adoption of the 
 Constitution, is the real ground on which this claim 
 of power for the two houses of Congress is supported : 
 its advocates have never ventured to base it wholly 
 upon the ordinary principle of self-preservation. It 
 is of the utmost importance, therefore, to ascertain 
 the ground on which the power of the House of 
 Commons itself stood ; and for this purpose it will be 
 necessary to consider the history of that body. After 
 a candid attempt to make such an examination, we 
 venture, at the outset, to assert that the exercise of 
 
— 35 — 
 
 this power by that assembly does not even tend to 
 show that it is incident ex necessitate to all legislative 
 assemblies ; and that it accrued to the House of Com- 
 mons simply because the British Constitution did not 
 furnish those assured and effective means of external 
 protection which the Constitution of the United States 
 does furnish. 
 
 It has invariably been assumed that the power of 
 the House of Commons to adjudicate and inflict 
 punishment for contempts and breaches of privilege 
 was of immemorial usage. This was chiefly important 
 in order to establish its legality; and for that purpose 
 Lord Ellenborough stated very elaborately, in the 
 famous case of Burdett vs. Abbott, 14 East. 1, the 
 method of setting out the prescription. But imme- 
 morial usage has been strongly urged for another 
 purpose — namely, as establishing a conclusion of, the 
 common law, that such power was inherent in the 
 very constitution of a legislative assembly, and existed, 
 ex necessitate. It is important first, therefore, to in- 
 quire into the antiquity of this power of the House 
 of Commons. 
 
 Before we take up the specific proofs touching this 
 question, it may be observed that the general history 
 of the Commons would hardly lead us to suppose that 
 they would come very early to exercise an inde- 
 pendent means of vindicating their privileges or 
 dignity. All the circumstances of their early place 
 in the Constitution make it improbable that th^y 
 should do so. For a considerable period their chief 
 business as a legislative body was to vote subsidies ; 
 and even when the authority of their flame was used 
 in making laws, they were only petitioners. 
 
— 36 — 
 
 The learned Mr. Spence's sketch of the methods of 
 parliamentary action presents a picture in which the 
 whole Parliament, Lords as well as Commons, seem 
 to stand in shadow ; a picture in which they stand 
 asking for rights, not vindicating them. We venture 
 to quote from his account at some length : " Prior to 
 the reign of Edward I (1272), laws appear to have 
 been drawn up and proposed to Parliament by the 
 King. After the representatives of the Commons 
 were admitted as members of the Parliament, a mode 
 was opened to the community at large for having 
 their petitions presented and attended to. The laws, 
 from this time, usually originated in petitions pre- 
 sented by the Commons, or by the Lords and Com- 
 mons, to the King, or to the King and his council. 
 The statutes were drawn up after the end of each 
 Parliament, from such of the petitions and the answers 
 as were considered fit to be converted into permanent 
 laws ; and after having been shown to the King, and 
 his consent obtained, they were entered on the Rolls 
 of Parliament. Writs, in the name of the King, were 
 then sent into every county, with directions to have 
 the statute proclaimed. So that the statutes, whether 
 they originated with the King or not, very commonly 
 assumed the form of royal ordinances, or concessions 
 from the King, and were promulgated as proceeding 
 from the royal authority alone. 
 
 "In the reign of Edward III (1327-1377) the 
 following form was usually adopted : ' These be the 
 articles accorded in the Parliament of our Lord the 
 King, by our said Lord the King, with the assent of 
 the Prelates, Earls, and Barons, and also at the re- 
 quest of the Knights of the Shires and of the Commons, 
 
— 37 — 
 
 by their petitions put in the said Parliament ; ' though 
 this form is not uniformly adhered to. * * * 
 
 " Many inconveniences arose to the subject, and 
 numerous irregularities were occasioned, from the 
 ancient mode of framing and publishing the statutes ; 
 sometimes no statute was made, though agreed on ; 
 things agreed on were occasionally omitted ; some- 
 times things neither prayed for nor agreed on were 
 added ; and sometimes entire statutes were made, to 
 which neither Lords nor Commons had assented. 
 The Commons, in the reign of Henry IV (1399-1413), 
 petitioned for a remedy for these inconveniences and 
 abuses ; and the King, in answer, conceded that in 
 future the clerks of the Parliament should draw up 
 the Acts, with the advice of the Justices, from the 
 substance of the proceedings, and then show them to 
 the King for his assent. 
 
 " In the succeeding reign (Henry V, 1413-1422) 
 the King, in answer to a petition of the Commons, 
 conceded that nothing should be enacted on the 
 petition of the Commons that was contrary to their 
 asking, whereby they should be bound without their 
 consent. But the due enactment of laws, as assented 
 by the Lords and Commons, was for the first time 
 effectually secured by the practice which obtained in 
 the reign of Edward IV (1461-1483), and has con- 
 tinued ever since, of reducing the petition or bill into 
 the form of an Act, and presenting it in that state for 
 the royal assent, or rather, as it should be called, fiat, 
 looking to the terms in which that assent is conveyed. 
 
 " From the reign of Henry VII downwards, the 
 statutes have been uniformly drawn up as made with 
 the assent and by the authority of the Commons 
 
— 38 — 
 
 equally as of the Lords ; though the imperial style is 
 still so far preserved, that the sovereign enacts by the 
 special authority of the Lords and Commons in the 
 particular case." 1 Spence Eq. Jur., 263-272. 
 
 Such a picture as this does not prepare us to credit 
 the assumption that the present privileges or powers 
 of the House of Commons were conceded by a formal 
 statute in the time of Henry III. A body which, 
 at the beginning, attended Parliament only to say 
 whether it would be taxed, and afterwards played 
 only the part of petitioners in matters of general legis- 
 lation ; attaining the position of equal authority with 
 the Lords after two hun4red years of existence, was 
 not likely to take very high ground concerning its 
 privileges until it found itself set well upon its feet. 
 The claim that its present privileges, and, a fortiori, 
 the claim th^-t its peculiar jurisdiction for the pro- 
 tection of those privileges, was actually of immemorial 
 usage, coincident with its action as a legislative as- 
 sembly, would be rejected by a disinterested reader of 
 English history as wholly inconsistent with known 
 facts, and even if no specific disproof existed. But 
 specific disproof does exist. The recorded precedents, 
 which have been collected by Hatsell, show that 
 centuries elapsed after the establishment of the House 
 of Commons, before that body took into its hands the 
 vindication and protection of even its most indispens- 
 able privileges. And we shall find that, during all 
 that time, the Commons were dependent, for protec- 
 tion, upon the King, or upon the King and the Lords, 
 or upon the common law courts ; and that they were 
 protected only by civil remedies. 
 
 In 9 Edw. II (1316) the Prior of Melton, whose 
 
. — 39 — 
 
 parliamentary privilege had been violated, resorted to 
 a remedy which placed the matter on the footing of a 
 private injury. 1 Hatsell, 12. This proceeding was 
 by an original writ of attachment, returnable into the 
 King's Bench ; and, as Mr. Holroyd said in the argu- 
 ment of Burdett vs. Abboit, it appears plainly to have 
 been an actior^ for a trespass and a breach of privilege 
 also; the matter complained of being the distraining 
 of the plaintiff, by his horses and harness, at York, 
 while returning from the Parliaraent at Lincoln. 
 The manner in which the privilege was alleged is im- 
 portant ; it was set out in the form of a recital of the 
 King's obligation to protect the prelates, earls, barons 
 et alios, tam clericos quam laicos, against all griev- 
 ances. The process was executed and the defendants 
 were attached, but no judgment upon it has been 
 found ; so that the result of the case does not appear. 
 The fact, however, that an action was brought for that 
 which was complained of as a breach of privilege of 
 Parliament, as well as a trespass, and that the defend- 
 ants, who might have had a good cause for distraining, 
 except so far as respected the breach of privilege, were 
 put to answer both, informs us of the condition of the 
 law at that time touching the matter of protection. 
 
 The next case was in 5 Hen. IV (1404), 1 Hatsell, 
 13, where the Commons addressed a petition to the 
 King, praying his protection of their privilege, in 
 language which frankly describes a dependence which 
 was actual, not theoretical. They set forth that, ac- 
 cording to the custom of the realm, they and their 
 servants attended Parliament under the King's special 
 protection and defense, and that divers of their mem- 
 bers, and the servants of members, had been arrested 
 
— 40 — 
 
 in coming to and during Parliament, " en contempt de 
 vous, grande damage de partie, et retardacion des 
 besoignes de vos Parliamentz," and thereupon prayed 
 that persons causing such arrests should pay a fine to 
 the King and treble damages to the party aggrieved. 
 The answer, through the Lords, refused the prayer, 
 because a sufficient, remedy already existed. What 
 this sufiicient remedy was, is not clear; but it has 
 been suggested (1 Hatsell, 14) that it was merely the 
 writ of privilege or habeas corpus. The writ of privi- 
 lege issued out of chancery, and was merely for the 
 release of the member. It was not claimed that such 
 injuries were a contempt of Parliament; they were a 
 "retardacion" of its business, while the contempt 
 affected the King. All that the Commons asked was 
 that he should punish such offenders, and that the 
 aggrieved member should be compensated ; and this 
 was deemed unnecessary. In the same year, on the 
 occasion of Chedder's case, the Commons, setting forth 
 that they and their servants were often subjected to 
 personal injuries; for example, murder, mayhem, and 
 battery, and that there was no sufficient remedy, 
 prayed that the King should provide such remedy. 
 In response, it was ordered that persons so offending, 
 were to appear before the King's Beneh and then be 
 adjudged to pay damages and a fine. 
 
 In 8 Hen. VI (1430), 1 Hatsell, 17, one William 
 Lairhe, servant of a member, was committed to the 
 Fleet, in execution of a judgment of the King's Bench 
 recovered before time of Parliament. The Commons, 
 reciting their privilege, pray the King " to order, by 
 the authority of your Parliament, that said William 
 Larke be delivered from your said prison " (saving to 
 
— 41 — 
 
 the plaintiff hier execution), and also to grant by tlie 
 same authority that none of your lieges, the Lords, 
 knights for counties, citizens or burgesses, called to 
 your Parliament, their servants or domestics, be 
 arrested or detained in prison in time of Parliament, 
 unless for treason, felony, or surety of the peace." 
 The King simply granted, by the authority of Parlia- 
 ment, that Larke should be delivered out of prison. 
 
 No one seems to have imagined yet any contempt 
 of Parliament, and it would seem to have been thought 
 that the privilege against arrests was too broadly 
 claimed. Hatsell says of this case : " The Commons 
 certainly declare it to be their opinion, that they had 
 clearly the privilege of being free from all arrests, 
 during the Parliament, except for treason, felony, or 
 surety of the peace. But when, at the close of the 
 petition they pray that for the future it may be enacted 
 into a law that no knights, citizens or burgesses, or 
 their servants, may be arrested or detained in prison 
 during the time of Parliament, except for treason, 
 felony, or surety of the peace, the King refuses their 
 request, and gives a parliamentary negative ; and 
 therefore the more natural conclusion to be drawn, as 
 well from the petition as from the King's answer, 
 appears to be that this was not acknowledged to be 
 law, in the extent in which the Commons laid it down." 
 
 When this precedent was cited in Arundel's case, 
 the Lords said of it, that the petition might well be 
 refused, because it asked more than the privilege; 
 Larke' s imprisonment being before time of Parlia- 
 ment ; but it should be observed that it was chiefly 
 for a more effective remedy that the Commons asked ; 
 and Hatsell well suggests that the King could easily 
 
— 42 — 
 
 Have granted part of the prayer. Plainly there was 
 no haste to magnify the Commons. 
 
 Two years later, 1432 (1 Hatsell, 22), they pray 
 the King to order, by authority of Parliament, that 
 if any trespass, offense, or damage shall be done to 
 the persons of knights, citizens, or burgesses, or to 
 their servants, come to Parliament, the party aggrieved 
 may have a writ of trespass against him who shall 
 commit the wrong, returnable into the King's Bench, 
 and thereupon have double damages. It was still 
 only a private action that they proposed; but they 
 thought that the damages should amount to a penalty. 
 But the King refused, leaving the Commons to the 
 law as it stood already. That is to say, they could 
 recover only common damages, as had been allowed 
 in 5 Hen. IV. 
 
 The next precedent, which occurred in 11. Hen. VI 
 (1433), is introduced by Hatsell with the following 
 remark : " However, the next year, the same mischief 
 continuing, and it being found necessary, from the 
 frequent assaults made on members attending their 
 duty in Parliament, to apply some more speedy and 
 effectual remedy than what the common law allowed, 
 the House of Commons again are obliged to petition 
 the King for redress." 1 Hatsell, 24. 
 
 Reciting first the statute in Chedder's case, they 
 then set forth an assault upon"Richard Quatermains, 
 one of the knights for Oxford ; and thereupon pray 
 that a, statute be passed that, in case of an assault 
 upon a member, proclamation shall be made where 
 the offense occurred, requiring the offender to appear 
 before the King's Bench; where, upon default to 
 appear, or appearing and being found guilty, he shall 
 
— 43 — 
 
 . be adjudged to pay double damages. The Commons 
 had greatly moderated their earlier demands, though 
 their grievances had become more frequent and vio- 
 lent. This time their prayer was granted, and from 
 this petition and answer was drawn up, and entered 
 on the Statute Roll, the Act of 11 Hen. VI. 
 
 After citing this precedent, Hatsell remarks : " Not- 
 withstanding these repeated acts of Parliament to 
 secure the members of both houses from any insults 
 on their persons, such was the licentiousness of the 
 times — or, rather, so slow and ineffectual were the 
 remedies given by these laws — that in a very few 
 years the Commons again apply to the King for 
 further provisions to suppress this very dangerous 
 practice." 1 Hatsell, 27. This time they pray for 
 the same writ of proclamation that had been allowed 
 at that Parliament to Sir Thomas Parr; but what 
 that writ was is not known. 
 
 We come next to Thorpe's case, 31 and 32 Hen. VI 
 (1454) , in which there was a total denial of remedy, 
 and even the privilege itself of the Commons House 
 was treated with contempt by the Lords. A judg- 
 ment had been recovered by the Duke of York against 
 the Speaker of the House of Commons, in an action 
 of trespass brought into the Court of Exchequer, and 
 the Speaker was taken in execution and committed to 
 the Fleet, as well for the fine due to the Kiug, as for 
 the damages adjudged to the plaintiff. Upon the 
 meeting of Parliament, the Commons petitioned the 
 King and the Lords that they might enjoy all such 
 liberties and privileges as they had been accustomed 
 and of ancient times used, for coming to Parliament, 
 and going and returning; and then they required. 
 
— 44 — 
 
 that their Speaker might have his liberty ; this being 
 declared to be a privilege of Parliament. The Lords, 
 assuming entire control of the matter, consulted the 
 Judges, who, with a protestation that it was not for 
 them to determine the privileges " of the High Court 
 of Parliament," proceeded to state what they would 
 do if the matter came before their courts upon a writ 
 of privilege, and in this indirect manner they informed 
 the Lords that the Speaker had privilege to be released 
 from arrest. Nevertheless, the record shows that it 
 was "concluded by the Lords" that Thorpe should 
 remain ip prison according to law — which meant 
 according to the common law — notwithstanding the 
 privilege of Parliament and the fact that he was 
 Speaker. The answer of the Lords " being a matter 
 of law," was communicated to the Commons by one 
 of the law officers attending the House, and there- 
 upon the Commons were actually enjoined to proceed 
 without delay to choose a new Speaker. And this 
 was done. Little delay, indeed, marred any part of 
 this extraordinary proceeding ; for only three days 
 elapsed between the petition of the Commons and their 
 election of a Speaker. The violation of privilege was 
 flagrant and contemptuous, and the decision of the 
 Lords has ever since been conceded to have been 
 monstrous ; yet even in such a case it was not im- 
 agined by the Commons that they possessed any 
 means of helping themselves. 
 
 When this case was referred to in the debate on 
 the 8th of March, 1620, Sir N. Eich said : " It is a 
 case begotten by the iniquity of the times, when the 
 Duke of York might have had an overgrown power 
 
45 
 
 in it," and doubtless the Duke had much to do with 
 the conclusion of the Lords ; for he was present in 
 their House during the whole proceeding. But the 
 "iniquity of the times" does not account for the fact 
 that the Commons proceeded by petition. That pro- 
 ceeding had been their uniform course when one of 
 their members was arrested. 
 
 Hatsell points out that their course, in petitioning 
 as well the Lords as the King, was an extraordinary 
 feature in this case ; but there would seem to have 
 been good reason for such a departure from custom. 
 Henry must have been, at that time, disabled by one 
 of his fits of insanity. The Duke had opened that 
 Parliament on the 14th of February, 1454, " as lieu- 
 tenant or commissioner for the King," and may 
 already have been elected by it "to be protector and 
 defender of the realm of England." 
 
 In the next case which occurred, 39 Hen. VI 
 (1461), the petition of the Commons was addressed 
 to the King alone. It asked for a special statute tO' 
 enable the Lord Chancellor to release Walter Clerhe, 
 one of their members, from imprisonment on exe- 
 cution. 1 Hatsell, 41. 
 
 Fourteen years later, 14 Edw. IV (1475), a similar 
 petition was made in the case of Edward Hyde, a 
 member. This precedent is noticeable because, only 
 two years before that time, the Court of Exchequer 
 had held, in the case of John Walsh, "that a member 
 was not liable to be imprisoned for debt, sitting the 
 Parliament." Such a judgment would seem to mean 
 that the imprisonment, even in execution, was illegal. 
 If that were so, a special act would not be necessary 
 for the purpose of saving the Sheriff from liability 
 
— 46 — 
 
 for releasing tlie prisoner, or of saving the plaintiff's 
 execution. Yet the. Commons, who must have known 
 of that decision, only asked for Hyde's release, and 
 on the usual terms. Hatsell therefore expresses the 
 opinion that imprisonment of a member on execution 
 could not, at that time, have been illegal, and that 
 there was no other redress than a special act of 
 Parliament. 1 Hatsell, 47, 48. Up to this time, then, 
 it would seem that, so far from the House of Com- 
 mons having independent remedies of its own, even 
 its very privilege was trammelled by the process of 
 the common-law courts, and that when the latter was 
 used in execution, it could not be set aside or super- 
 seded, except by an act of the whole Parliament. 
 
 These precedents, running through a period of one 
 hundred and sixty years, from 1315 to 1475, show — 
 1st. That the only privilege claimed by the Commons 
 was freedom and safety for themselves, and their ser- 
 vants attending them, in coming to, continuing at, 
 and returning from Parliament ; including under this 
 head, in one or two instances, an exemption of their 
 necessary goods. 2d. That, for protection in this 
 privilege, they were, both in fact and according to 
 their own theory, dependent upon the King and his 
 courts of common law, or upon the King and the 
 Lords in Parliament. 3d. That the only remedies 
 provided for a violation of this privilege were, a mere 
 release from imprisonment, or an award of damages ; 
 in some cases penal. These conclusions are fully sus- 
 tained by the English writers on Parliamentary law. 
 Mr. Hatsell, in speaking of the period which came 
 down to 39 Hen. VI, says : " The privileges claimed 
 by the House of Commons during this period, were 
 
— 47 — 
 
 only for tlie knights, citizens, and burgesses, and 
 their menial servants or famiUares, present with them 
 in their attendance on Parliament. 2. The duration 
 of these privileges is in no instance carried further 
 than in their coming, staying, and returning to their 
 homes. 3. The extent of the privilege claimed is, to 
 be free from any assaults, or from arrests and im- 
 prisonments, except for treason, etc." 1 Hatsell, 38. 
 And, in speaking of the remedies for violation of 
 these privileges, as they stood even three-quarters of 
 a century later, he says : " Hitherto we have seen that 
 when a member, or his servant, has been imprisoned, 
 the House of Commons have never proceeded to 
 deliver such person out of custody by virtue of their 
 own authority ; but, if the member has been in exe- 
 cution, have applied for an act of Parliament to enable 
 the Chancellor_ to issue his writ for his release, or, if 
 the party was confined only on mesne process, he has 
 been delivered by his writ of privilege, which he was 
 entitled to at common law." 1 Hatsell, 53. And 
 Sir Thomas Erskine May, who would not hastily 
 impugn the antiquity of any Parliamentary privilege 
 or power, frankly describes the earlier condition of 
 the law in similar terms. He says : " In treating of 
 the privileges of individual members, it will be shown 
 that, in the earlier periods of Parliamentary history, 
 the Commons did not always vindicate their privi- 
 leges by their own direct authority ; but resorted to 
 the King, to special statutes, to writs of privilege, and 
 even to the House of Lords, to assist them in protect- 
 ing themselves. It will be seen in wha? manner they 
 gradually assumed their just position, as an inde- 
 pendent part of the Legislature, and at length estab- 
 
— 48 — 
 
 lished the present mode of administering tlie law of 
 Parliament." May's Pari. Law, 69. {a) 
 
 The first of the steps by which the Commons 
 "gradually assumed" the powers and privileges, 
 which are now claimed to be of " immemorial usage," 
 was taken in the case of George Ferrers, which 
 occurred 34 Hen. VIII (1543). 
 
 As the date of this step is of some importance, it is 
 proper, before stating that case, to correct a citation 
 which Lord Ellenborough is reported to have made 
 in Burdett vs. Abbott. Evidently intending to cite 
 the cases in chronological order, he says : " I would 
 refer only generally to the case of Ferrers (very 
 fully reported in Cromptbn's Jurisdiction of Courts) ; 
 Trewinnard's case, in Dy. 59; William Thranvns's 
 case, in 1529, who was committed to the custody of 
 the 8ergeant-at-Arms, for a contempt in words against 
 the dignity of the House; etc." No such case as 
 Thranwis's is mentioned either by Hatsell or May, 
 
 (a) Mr. Holroyd, whose statements, even in the argument of a cause, 
 may he regarded as authority, pointed out, in the argument of Surdett vs. 
 Abbott, that in the time of Henry VII the House of Commons, so far from 
 inflicting punishment for breach of their privileges, did not even act upon 
 their own authority in delivering a member imprisoned contrary to privi- 
 lege. In citing the case of JRoo vs. SadcUffe, 1 Hen. VII, he said : " Up to 
 that period the House of Commons had never proceeded as for a breach 
 of privilege upon their own authority. When it was a common case of 
 privilege known to the law, a writ of privilege was issued as a matter of 
 cdurse, by which it was enforced : when there was any doubt or difficulty 
 in the matter it was referred to the consideration of the whole Parliament, 
 and acted upon by them as a matter of common concern to both houses ; 
 but it never was acted upon by the Commons alone on their "single reso- 
 lution: they had never proceeded to deliver any person arrested upon 
 process out of custody by their own authority : on the contrary, they had at 
 last abandoned their repeated claim and privilege to be exempt from being 
 impleaded during Parliament, after it had been as often disallowed by the 
 Lords and the judges." 14 East. 1. 
 
A. 
 
 — 49 — 
 
 and the name and date of the case are undoubtedly 
 wrong. The learned Judge intended, of course, to 
 refer to the case of William Thrower, which occurred, 
 not in 1529, but in 1559. Thrower, who was a ser- 
 vant of the Master of the Eolls, was called before the 
 bar of the House for having said at Lincoln's Inn, 
 that if a certain ridiculous bill about women's head 
 gear were introduced in the Commons they would 
 make a question of it ; and that he had heard some 
 of the Lords say so at his master's table. It was 
 in the latter statement that the sting lay, and poor 
 ' _ Thrower had to suffer vicariously. But it was not 
 \J upon any such matter as that, that the power to 
 \ punish for contempt would be used, until it had grown 
 somewhat familiar by use. As the real occasion of 
 \^ its first exercise, as well as the date, are of some 
 J moment, it has been deemed worth while to correct 
 
 what is probably only a printer's error. 
 ^ We return then, to Ferrers' case, as the original 
 
 , of this power. The following account of it is taken 
 by Hatsell from Holinshed's Chronicles : 
 
 "In the Lent season, whilst the Parliament yet 
 continued, one George Ferrers, Gentleman, servant to 
 the King, being elected a burgess for the town of 
 Plimmouth, in the county of Devon, in going to the 
 Parliament House, was arrested in London by a pro- 
 cess out of the King's Bench, at the suit of one White, 
 for the sum of two hundred marks, or thereabouts, 
 wherein he was late afore condemned as surety for 
 the debt of one Weldon of Salisbury ; which arrest 
 being signified to Sir Thomas Moile, Knight, then 
 Speaker of' the Parliament, and to the Knights and 
 Burgesses there, order was taken that the Sergeant of 
 
 7 
 
— 50 — 
 
 the Parliament, called S. J., should forthwith repair 
 to the Counter, in Bread Street, whither the said 
 Ferrers was carried, and there to demand delivery of 
 the prisoner. Thereupon the Sergeant, as he had in 
 charge, went to the Counter and declared to the Clerks 
 there what he had in commandment ; but they, and 
 other officers of the city, were so far from obeying 
 the said commandment, as, after many stout words, 
 they forcibly resisted the said Sergeant; whereof 
 ensued a fray within the Counter gates, between the 
 said Ferrers and the said officers, not without hurt of 
 either part ; so the said Sergeant was driven to defend 
 himself with his mace of armes, and had the crown 
 thereof broken by bearing off a stroke, and his man 
 stroken down. During' this brawle, the Sheriffs of 
 London, called Rowland Hill and H. Suckley, came 
 hither; to whom the Sergeant complained of this 
 injury ; and required of them the delivery of the 
 said Burgess, as afore ; but they bearing with their 
 officers, made little account either of his complaint or 
 of his message, rejecting the same contemptuously, 
 with much proud language, so as the Sergeant was 
 forced to return without the prisoner ; and finding 
 the Speaker and all the Knights and Burgesses set in 
 their places, declared unto theni the whole cause as it 
 fell out : who took the same in so ill part, that they 
 altogether (of whom there were not a few, as well 
 of the King's Privy Council, as also of his Privy 
 Chamber) would sit no longer without their Burgess, 
 but rose up wholly and retired to the Upper House ; 
 where the whole case was declared by the mouth of 
 the Speaker, before Sir Thomas Audley, Knight, then 
 Lord Chancellor of England, and all the Lords and 
 
— 51 — 
 
 Judges there assembled; who, judgi/ng the contempt 
 to be very great, referred the punish'ment thereof to the 
 ord,er of the Commons House. 
 
 " They, returning to their places again, upon new 
 debate of the case, took order that their Sergeant 
 should eftsoon repaire to the Sheriffs of London and 
 require delivery of the said Burgess, without any writ 
 or warrant had for the. same, but only as aforesaid: 
 Albeit the Lord Chancellor offered there to grant a 
 writ, which they of the, Commons House refused ; 
 being of a clear opinion that all commandments and 
 other acts proceeding from the Neather House were 
 to be done and executed by the Sergeant without 
 writ, only by show of his mace, which was his war- 
 rant. But before the Sergeant's return into London, 
 the Sheriffs having intelligence how haynously the 
 matter was taken, became somewhat more milde, so 
 as, upon the said second demand, they delivered the 
 prisoner without any denial. But the Sergeant having 
 then further in commandment from those of the 
 Neather House, charged the said Sheriffs to appear 
 personally on the morrow, by eight of the clock, 
 before the Speaker of the Neather House, and bring 
 thither the Clerks of the Counter, and such other of 
 their officers as were parties to the said affray, and in 
 like manner to take into custody the said White, 
 which wittingly procured the said arrest, in contempt 
 of the privilege of the Parliament, Which command- 
 ment being done by the said Sergeant accordingly, 
 on the morrow the two Sheriffs, with one of the 
 Clerks of the Counter (which was the chief occasion 
 of the said affray), together with the said White, 
 appeared in the Commons House : when the Speaker 
 
— 52 — 
 
 charging them with their contempt and misdemeanor 
 aforesaid, they were compelled to make immediate 
 answer, with out being admitted to any counsell ; 
 albeit Sir R. Cholmley, then Recorder of London, 
 and other counsell of the city there present offered to 
 speak in the cause, which were all put to silence, and 
 none suffered to speak but the parties themselves; 
 whereupon in the conclusion the said Sheriffs, and 
 the same White, were committed unto the Tower of 
 London, and the said Clerk (which was the occasion 
 of the fray) to a place there called Little Ease, and 
 the officer of London, which did the arrest, called 
 Bayley, with four officers more, to Newgate, where 
 they continued from 28th until 30th of March : and 
 then they were delivered, not without humble suit 
 made by the Lord Mayor of London and other 
 friends. 
 
 " The King, being then advertised of all this pro- 
 ceeding, called immediately before him the Lord 
 Chancellor of England and his judges, with the 
 Speaker of the Parliament and other the gravest 
 persons of the Neather House, to whom he delivered 
 his opinion to this effect: First commending their 
 wisdom in maintaining the privileges of their house 
 (which he would not have to be infringed in any 
 point) , alleged that he, being head of the Parliament, 
 and attending in his own person upon the business 
 thereof, ought in reason to have privilege for him 
 and all his servants attending there upon him. So 
 that if the said Ferrers had been no Burgess, but 
 only his servant, that in respect thereof he was to 
 have the privilege as well as any other : * * and 
 we are informed by our Judges, that we at no time 
 
— 53 — 
 
 stand so highly in our estate royale, as in the time of 
 Parliament, wherein we as head, and you as members, 
 are conjoined and knit together in one body politic, 
 so as whatsoever offence or injury (during that time) 
 is offered to the meanest member of the House, is to 
 be judged as done against our person and the whole 
 Court of Parliament ; which prerogative of the Court 
 is so great (as our learned counsell informeth us), as 
 all acts and processes coming out of any other inferior 
 courts must for the time cease and give place to the 
 highest." 
 
 The authenticity of this case has been questioned ; 
 probably because the first report of it is found in 
 Holinshed's Chronicles. Hatsell mentions in a note 
 (Vol. I, p. 57) that : " In Carte's History of England, 
 Vol. ni, pp. 164, 541, it is said: 'That the whole 
 case of Ferrers, related by Holinshed and copied by 
 Grafton and Speed, is untrue.' Carte supposes the 
 case to be a mere fable, which the Puritans and 
 Calvinists prevailed upon Holinshed to insert in his 
 history to serve some political purpose." Like enough 
 both parties colored highly in those days; but, as 
 Holinshed's book appeared in 1577, only thirty-four 
 years after the alleged date of Ferrers', case, it is not 
 probable that even the most unscrupulous partisan 
 would venture so soon to create a parliamentary, event. 
 It would be well remembered whether the Lords and 
 Commons took the courses ascribed to them. Besides, 
 we find Holinshed's report reproduced in Crompton's 
 Jurisdiction of Courts, which was printed in 1592; 
 and Crompton vouches for his own precautions and 
 accuracy in^these words: "Because this case hath 
 been diversely reported, and is commonly alleged as 
 
— 54 — 
 
 a precedent for the privilege of Parliament, I have 
 endeavoured myself to learn the truth thereof, and to 
 set it forth with the whole circumstances at large, 
 according to their instructions who ought best to 
 know and remember it." The lapse of forty-nine 
 years could not have removed all witnesses capable 
 of remembering so marked a change in Parliamentary 
 action ; and many lawyers must have been living in 
 Crompton's time who might have learned the facts 
 from those who actually witnessed them. The very 
 diversity of reports with which he had met, was more 
 likely to happen in the tradition of an actual event 
 than in fiction ; and his statement that he had the 
 facts from persons who remembered them must be 
 accepted as conclusive proof, unless it is overcome by 
 positive disproof, or by an extreme improbability that 
 such a case could occur. Neither of these appears. 
 Carte's disbelief is not disproof; and as to proba- 
 bility, we know that a change had taken place, and 
 that power to punish as a contempt, such acts at least 
 as were committed in Ferrer^s case, had been assumed 
 by the House of Commons. As to the time when this 
 change occurred, we know that it must have been 
 before the year 1552, when the power was unquestion- 
 ably exercised in Grehetoste^s case. 1 Hatsell, 71. 
 There is no reason, therefore, to doubt the authen- 
 ticity of Holinshed's account of Ferrers' case. 
 
 We have now followed the precedents through a 
 period of two hundred and thirty-six years, from 
 1316 to 1652, and may gather from them several im- 
 portant conclusions. 
 
 1st. A breach of the privileges of the House of 
 
— 55 — 
 
 Commons was undoubtedly understood to constitute 
 a contempt of the privileges of Parliament, and no 
 doubt was punishable; but no instance has been found 
 of such contempt having been punished by any au- 
 thority whatever prior to 1543. For almost three 
 centuries, the protection of the Commons seems to 
 have been confined to a mere release of their members 
 from imprisonment and to a recovery of damages. 
 
 2d. It appears that, prior to the year 1543, it was 
 understood that, although a contempt of the privileges 
 enjoyed by the Commons might be punished^ the law 
 of the realm did not vest in them an independent 
 authority and jurisdiction to inflict such punishment. 
 The action of the Commons in appealing to the Lords 
 in Ferrers' cdi.se, the action of the Lords in "referring 
 the punishment" to the Commons, and the action of 
 the King in communicating his approval of what had 
 been done, are conclusive evidence on this point. 
 
 3d. It appears that, when the Commons undertook 
 to exercise that jurisdiction, they acquired it substan- 
 tially by grant, and that the matter was so understood 
 by themselves and by the Lords, and by the King. 
 On this point, also, their appeal to the Lords, the 
 reference of the matter to them by the Lords, and the 
 King's peculiar manner of sanctioning the whole pro- 
 ceeding, are conclusive evidence. It is not important 
 to determine how nearly the actual, though informal, 
 consent of all the branches of Parliament was equiv- 
 alent to a statute of the realm, for the purpose of 
 conferring the power ; it is enough that it accrued 
 to the Commons practically by concession, and as 
 something which they were well understood not to 
 possess already. When the question is, whether the 
 
56 
 
 power was inherent in the House of Commons, as a 
 power necessarily incident to the constitution of a 
 legislative assembly for the purposes of self-protec- 
 tion, or was the mere creature of law — in other words, 
 whether it was ex necessitate or was merely lawful — it 
 is immaterial that the formalities of legislation were 
 not observed. Other constitutional powers of that 
 house have grown up in an equally informal manner, 
 but are nevertheless held to have been established by 
 law. 
 
 4th. It appears that, in accordance with the patch- 
 work method of the British Constitution, this grant 
 was in effect a Constitutional distribution of power, 
 and that it came to pass because the Constitution had 
 hitherto failed to provide any sufficient means for the 
 protection of the Commons. It was impossible, by 
 reason of the interests of other powers in the State, to 
 furnish such protection in any other way. It could 
 not be administered by the Courts ; for the Constitu- 
 tion could not at that time provide an independent 
 judiciary. It could not be administered by means of 
 special acts, for legislation was a matter of discretion, 
 and might not be obtained. In short, this was the only 
 provision which the British Constitution of that time 
 could make. The result does not even tend to demon- 
 strate that such a power and jurisdiction was inherent 
 in, and belonged ex necessitate, to a legislative body. 
 
 Of course, it is not pretended, in characterizing 
 that proceeding as a constitutional distribution of power, 
 that it was deliberately and consciously undertaken 
 for that purpose. It is only in looking back upon 
 the history of the Commons, that the actual forces 
 and reasons which brought about this, like other 
 
— 67 — 
 
 changes, can be appreciated. Considered from that 
 point of view, it was as much a part of English con- 
 stitution-making, as other powers of the House of 
 Commons. 
 
 It is not for a moment denied that there was a 
 necessity that the House of Commons should acquire 
 this power, and that they should possess it as a means 
 of self-protection. But it is insisted that that necessity 
 was peculiar to its position among the contending 
 powers of the State, and that it would not have arisen 
 if the antagonistic powers had been willing to provide 
 other means. 
 
 That such a step, apparently towards independ- 
 ence, should have been achieved in the last years of 
 Henry VIII, may seem to be a matter of some 
 wonder ; for the student of English History would 
 hardly look to that peridd for any development of 
 parliamentary powers which should render either the 
 Lords or the Commons less dependent upon the King. 
 Both bodies usurped enormously to further his will ; 
 but against it they dared not claim their own. Their 
 relation to him, in legislative matters, was simply 
 that of shameful servility, and it is difficult to decide 
 which of them was readier to degrade itself. But the 
 explanation is not wanting ; and the accidents which 
 enabled the Commons to secure so great a power 
 amid such complete subjection, have been shrewdly 
 suggested by English commentators on parliamentary 
 history. Hatsell points out the consideration that it 
 was important to Henry that he should appear to 
 the Catholic powers of the Continent to have a good 
 understanding with his Parliament. Of course he 
 was ready to do, for such a purpose, anything that 
 
— 58 — 
 
 did not interfere with his own aims, or involve a 
 material sacrifice of power; and this concession 
 appeared to involve none. He saw in the occasion 
 an opportunity to gain at least as much as he con- 
 ceded. There had been no doubt that privilege 
 exempted the servants of members, as well as mem- 
 bers themselves, from, imprisonment; and Henry 
 proposed to share this protection for his servants, by 
 reminding them that he also was a part of the Parlia- 
 ment, attending in person upon its sittings. And, as 
 Hatsell suggests, it was quite as much to the fact that 
 Ferrers was his servant, as to the fact that he was their 
 member, that the Commons were indebted for his 
 ready acquiescence in their proceedings, {a) What 
 might have befallen in a case less agreeable to his 
 temper, we have no means of knowing ; for Crehetoste's 
 case, which was the next instance, occurred in the 
 reign of his successor. 
 
 We are not to suppose, however, that their juris- 
 diction, or the application of their privileges, had 
 taken a definite form even in their own minds. They 
 conducted themselves as men always do in the process 
 of acquiring a power. In 1555, when one of their 
 members " was bound in a recognizance in the Star 
 Chamber, to appear before the Council within twelve 
 days after the end of this Parliament," they laid 
 before the Lords a declaration that their privilege 
 was violated thereby. The Lords decided, however, 
 that it was not. 1 Hatsell, 74. They did not under- 
 
 (a) Mr. Holroyd, in the argument of Burdett vs. Abbott, said of Ferrers' 
 case : " It appears that the allowance of the privilege in that case was as 
 well in respect of the claim of the King for his servants, as of the claim of 
 the House for its members." 
 
59 
 
 take to decide the matter for themselves. And in 
 1675, when a servant of Mr. Hall, one of their mem- 
 bers, was imprisoned for a debt, a committee, to whom 
 they referred .the matter, actually reported to the 
 House that they could find no precedent for deliver- 
 ing him by the mace, and that a writ from the Lord 
 Keeper would be necessary. The House accordingly 
 instructed Mr. Hall to apply for a writ of privilege. 
 Some time afterwards (the writ probably not having 
 been granted) they summoned the Sergeants of Lon- 
 don, who held the prisoner, and delivered him by 
 their own order. 1 Hatsell, 89. Nothing could better 
 illustrate that this jurisdiction was still in process of 
 formation and establishment. 
 
 In the very next case, they assumed the air and 
 power of a court of justice; still swinging between 
 extremes in the manner that is characteristic of an 
 unsettled jurisdiction. In 1580, they arraigned Arthur 
 Hall, one of their members, for having written and 
 pubKshed a book which contained what they held to 
 be libelous charges against their House; and the 
 Speaker delivered to him a judgment by which he 
 was condemned to expulsion, to imprisonment for the 
 definite period of six months, and to pay a fine to 
 the Queen. Hatsell speaks of this as a " very new 
 and extraordinary proceeding," and suggests that 
 there must have been a secret history in the case, 
 and that it must have involved some particular 
 offence to the Queen. 1 Hatsell, 93. Very clearly, 
 the proceeding was new and extraordinary, and it 
 shows that the jurisdiction of the House of Com- 
 mons to inflict punishments depended upon its 
 temper, and had not yet come to have definite limits. 
 
60 
 
 No sucli extent of power has been exercised in more 
 constitutional times. 
 
 The manner in which this jurisdiction of the Com- 
 mons was exercised during the first forty years of its 
 existence, has already shown that it was brought into 
 existence and moulded by circumstances peculiar to 
 English history; and that it did not accrue to that 
 body because it must belong to every legislative 
 assembly. 
 
 But this law of its origin and operation cannot be 
 fully appreciated until we shall have considered the 
 later experiences of the House of Commons. When 
 they first undertook to exercise this power, they made 
 no pretension to determine what their privileges were ; 
 they vindicated only such as were universally con- 
 ceded. But they came in time to claim a right to 
 define as well as to defend their privileges ; and we 
 shall find that, throughout their whole course, they 
 were always impelled by the necessities of their 
 peculiar surroundings. Their later history will ex- 
 plain the origin of their peculiar power even better 
 than its beginning has done; because it illustrates 
 the method and law of its existence and growth. We 
 shall find that privileges, inherent in the strictest 
 sense in legislative bodies, would have been lost, but 
 for the assertion of a still larger independence. None 
 of them, for example, could be more indispensable 
 than freedom of speech ; and for exercising that right, 
 the Commons were lectured and threatened and pun- 
 ished through still another century. Elizabeth treated 
 that "liberty" as a mere concession of the crown, a 
 sufferance, and not as a constitutional right, equal to 
 
— 61 — 
 
 her own prerogatives. In her very first Parliament, 
 when the Speaker mentioned freedom of speech, in 
 petitioning for the ancient privileges of the Commons, 
 she gave them to understand that it was to be used 
 "reverently and decently;" D'Ewes, 16; 1 Hatsell, 
 75 ; and she decided more than once whether it had 
 been so used. Thirty-four years afterwards she caused 
 her Lord Keeper, Sir John Puckering, who had him- 
 self been Speaker, to say to them : " Liberty of speech 
 is granted you; but you must know what privilege 
 you have^ — not to speak every one what he listeth, or 
 what Cometh in to his brain to utter — but your privi- 
 lege is Aye or No." 1 Pari. His. 861 ; May, 114. It 
 is pretty clear, therefore, that her notion of their 
 privileges was a settled political doctrine of the crown. 
 On the other hand, she informed them that some 
 matters were not subjects of legislation at all. In 
 these she did not recognize even the privilege of Aye 
 and No. There could be no doubt of their consti- 
 tutional right to consider measures to prevent a dis- 
 puted succession ; even Henry VIII had employed 
 them in "settling" the crown; but in 1566, while 
 they were discussing the question of her marriage 
 and the succession, she " commanded " them not to 
 proceed further in the matter. They knew she had 
 no right to do so ; but even Peter Wentworth, their 
 boldest member, ventured only to doubt whether such 
 an interference was not an infringement of their privi- 
 leges and liberties. In 1585 she sent for Mr. Speaker 
 Puckering and reprimanded him for allowing a bill 
 to be introduced for the further reform of the church. 
 He communicated her displeasure to the House, and 
 the bill was allowed to drop. 1 Pari. His. 830. In 
 
— 62 — 
 
 the opening of the next Parliament there came a 
 special order from her, " that no laws should be made 
 at all in this session," and it was strictly obeyed. 
 
 But Elizabeth knew when it was best to yield and 
 when it was safe to persist. For example, after order- 
 ing Strickland, the mover of certain bills touching 
 religion, to absent himself from the House and await 
 the orders of her privy council, she quietly allowed 
 him to return to his seat, on perceiving the temper of 
 the Commons. But eight years later (1593), when 
 Wentworth and three other members had been sent 
 to prison for petitioning the Lord Keeper that the 
 Lords would join in supplicating her majesty to 
 agree to settle the succession to the crown, she 
 answered a motion for their release by telling the 
 Commons that she had committed them " for causes 
 best known to herself, and that she would release 
 them whenever she thought proper, and would be 
 better pleased to do it of her own proper motion than 
 from their suggestion." D'Ewes, 497. 
 
 It is true that in this instance the offenders had 
 not acted in their capacity of members, and their 
 petition to the Lord Keeper was not in the course of 
 legislation. The Commons might still have claimed 
 that their members were not liable to imprisonment 
 for such a matter, but their ground was not so strong 
 as in Strickland's case, and they submitted. It is 
 clear enough that parliamentary privilege was not 
 established yet. 
 
 Their worst experiences, however, were to come. 
 Elizabeth had no inclination to degrade the manhood 
 of her people, and found no pleasure in the mere 
 humiliation of their representatives; She rarely 
 
— 63 — 
 
 touched their privileges, till they touched the twin 
 subjects of her jealousy — marriage and supremacy ; 
 and more than once, after a sharp beginning, her 
 good sense persuaded her to desist. But her successor, 
 who had no sense, detested manhood as an insult to 
 himself, and regarded the humiliation of the Com- 
 mons as their proper and desirable condition. Accord- 
 ingly his violations of their right of free speech were 
 limited only by his personal cowardice. Had he been 
 as brave as Elizabeth, "privilege" would have become 
 extinct, and Parliaments would have ceased. 
 
 The struggle of the Commons with this dynasty of 
 insolence and stupidity and falsehood was thoroughly 
 dramatic. It was by situations that the necessity was 
 developed and the argument was furnished, for an 
 independence which should in all respects and by 
 every instrumentality, take care of its own interests. 
 
 ■Throughout this struggle there was no uncertainty 
 about their rights ; there was simply insecurity for 
 want of remedies. In his very first Parliament, 1604, 
 they informed James that their privileges and liberties 
 were their right and due inheritance, no less than 
 their lands and goods ; and could not be withheld, 
 denied, or impaired, but with apparent wrong to the 
 whole estate of the realm ; and they explained to him 
 that their making request, in the entrance of Parlia- 
 ment, to enjoy their privileges, was an act of manners, 
 and weakened their right no more than their suing 
 to the King for their lands by petition. 1 Hatsell, 
 227. But James was not afraid of talk — he could 
 out-talk any man in the kingdom — and that was all 
 the Commons had got to yet. So he berated them 
 roundly for their speeches, and, three years after 
 
— 64 — 
 
 their famous Apology, they fell back to a position in 
 which rights and accountability were about equally 
 mingled. They made known to him, through their 
 Speaker, their earnest desire that he would listen to 
 no private reports of their doings, but take his infor- 
 mation of the House's meaning from themselves; that 
 he would be pleased to allow such members as he had 
 blamed to clear themselves in his hearing, and that 
 he would, by some gracious message, let them know 
 that they might deliver their opinions in their places 
 without restraint or fear! (Macfarlane's Eng. B. 7, 
 C. 1.) Certainty of right and uncertainty of tenure 
 could not well come into sharper antithesis than in 
 this prayer. 
 
 They had ample reason for their uncertainty of 
 tenure. In 1614, at the close of what was called the 
 Addle Parliament, because it did not pass a single 
 bill, James sent five of their members to the Tower 
 for " licentiousness of speech." Meantime it is some 
 relief to reflect that this very Parliament, by refusing 
 to pass any bill until their grievances should be re- 
 dressed, had done a great deal towards the establish- 
 ment of its rights. When the King dissolved them, 
 they had made as long a step for independence as he 
 appeared to have done for despotism. 
 
 It was a good while before the direct contest was 
 renewed ; for James kept out of their way by not 
 having any Parliament for the next six years; but 
 at last he had to come back to subsidies, and they 
 were confronted once more in the famous Parliament 
 of 1621. During a five months recess of that Parlia- 
 ment, several eminent persons, and among them Sir 
 Edwin Sandys, " a bold-spoken member of the Lower 
 
— 65 — 
 
 House," were arbitrarily arrested. Tlie Commons 
 knew well enough that these proceedings had been 
 provoked by the expression of liberal opinions, and 
 they stood by their member. As no prosecution had 
 been instituted against him, the way was open. 
 Sandys was. sick in bed; so they sent two members 
 to wait upon him and hear from his own inouth the 
 cause of his arrest. The King, hearing that they 
 were about to take this step, wrote to the Speaker 
 that it was not for anything done in Parliament, and 
 then he added: "but to put them out of doubt of any 
 question of that nature that may arise among them 
 hereafter, you shall resolve them in our name, that 
 we think ourselves very free and able to punish any 
 man's misdemeanors in Parliament, as well during 
 their sitting as after; which we mean not to spare 
 hereafter, upon any occasion of any man's insolent 
 behavior there, that shall be ministered unto us." 1 
 Hatsell, 137. The House answered by a remonstrance, 
 asserting their undoubted right of free speech as an 
 inheritance from their ancestors. To that the King 
 replied from Newmarket, saying of their privilege 
 " We could not allow of the style, calling it their 
 ancient and undoubted right and inheritance, but 
 could rather have wished that they had said, their 
 privileges were derived from the grace and permission 
 of our ancestors and us ; for most of them grow from 
 precedents, which showeth rather a toleration than 
 an inheritance. The plain truth is, we cannot with 
 patience endure our subjects to use such anti-monar- 
 chial words to us, concerning their liberties, except 
 that they had subjoined that they were granted to 
 them by the grace and power of our predecessors." 
 
 9 
 
— 66 — 
 
 He added, that, so long as they contained themselves 
 within the limits of their duty, he would be as care- 
 ful of their privileges as of his own prerogative, so 
 liiat they never touched on that prerogative, which 
 would enforce him or any just King to retrench their 
 privileges. 
 
 The issue was now made up : the King asserted 
 that the privileges of Parliament existed only by his 
 sufferance, and depended entirely on what he might 
 consider their good behavior : the Commons, that 
 they owned their privileges as much as they owned 
 their lands. It was a hot question and the House 
 was so thoroughly exasperated that the King took 
 fright. His courtiers in that body tried to apologize 
 for these expressions as a slip of the pen, and James 
 wrote a letter to Secretary Calvert to qualify what he 
 had said. But even in that letter, he could not 
 abstain from re-asserting that the liberties and privi- 
 leges of the House were not of undoubted right and 
 inheritance, unless they were so from being granted 
 by the grace and favor of his predecessors on the 
 throne. 
 
 The temper which these stupendous pretensions 
 aroused may be imagined from the fact that a com- 
 mittee of the whole house was appointed to meet 
 next day, when, with the help of Sir Edward Coke, 
 Mr. Noy and Mr. Glanville, they drew up the follow- 
 ing Protestation : " The Commons now assembled in 
 Parliament, being justly occasioned thereunto, con- 
 cerning sundry liberties, franchises, privileges, and 
 jurisdictions of Parliament, amongst others not herein 
 mentioned, do make this protestation following : — 
 That the liberties, franchises, privileges, and jurisdic- 
 
— 67 — 
 
 tions of Parliament are the ancient and undoubted 
 birthright and inheritance of the Subjects of England; 
 and that the arduous and urgent affairs concerning 
 the King's state, and the defence of the realm, and of 
 the Church of England, and the making and main- 
 tenance of laws, and redress of mischiefs and griev- 
 ances, which daily happen within this realm, are 
 proper subjects and matter of counsel and debate in 
 Parliament ; and that, in the handling and proceed- 
 ing of those businesses, every member of the House 
 hath, and of right ought to have, freedom of speech 
 to propound, treat, reason, and bring to conclusion 
 the same: that the Commons in Parliament have like 
 liberty and freedom to treat of those matters in such 
 order as, in their judgment, shall seem fittest; and 
 that every such member of the said House hath like 
 freedom from all impeachment, imprisonment, and 
 molestation (other than by the censure of the House 
 itself) for or concerning any bill, speaking, reasoning 
 or declaring of any matter or matters touching the 
 Parliament or Parliament business ; and that, if any 
 of the said members be complained of and questioned 
 for anything said or done in Parliament, the same is 
 to be shown to the King by the advice and assent of 
 all the Commons assembled in Parliament, before the 
 King give credence to any private information." After 
 a debate which lasted until the then unusual hour of 
 five or six in the evening, the Commons entered this 
 Protestation upon their journal "as of record." 
 
 This was intolerable insolence, and James' wrath 
 overcame his cowardice. He rode up to London 
 foaming at the mouth, prorogued Parliament, ordered 
 the clerk of the House of Commons to bring him the 
 
— 68 — 
 
 Journal Book, and with his own hand tore out the 
 Protestation. -Then in his council-book he caused to 
 be entered this : " His Majesty did, in full assembly 
 of his council, and in the presence of the judges, de- 
 clare the said protestation to be invalid, annulled, 
 void, and of no effect." If negativing words could 
 make it naught, the protestation was annihilated. A 
 few days afterwards he closed their mouths effectually 
 by an insulting proclamation of dissolution. 1 Hat- 
 sell, 137 ; Macfarlane's Eng. B, 7, anno 1621 ; and 
 then he sent Coke and Sir Eobert Phillips and Mr. 
 Seldon to prison. He could refute the doctrine of 
 free speech in that way, if in no other. 
 
 But trouble always disturbed his theory of divine 
 power. Three years later, when he was deeply in 
 debt, when the Spanish marriage had miscarried, 
 when everything had gone wrong, he addressed his 
 last Parliament in a tone of moderation and sweetness. 
 He told them that he remembered and regretted past 
 misunderstandings ; that he hoped they would judge 
 him charitably, as they wished to be judged, and that 
 he earnestly desired to do his duty and manifest his 
 love to his people. In plain English, he wanted 
 money dreadfully. 
 
 But this lull in the contest meant nothing; or 
 rather it only meant that freedom was to come by 
 contest. The Stewart devil was a monk only while 
 he was sick. And there were other Stewarts. James 
 died in the next year, but he only made room for a 
 more serious and determined fool, a fool on principle. 
 
 Charles went to work promptly and kept on in- 
 dustriously. Immediately after his coronation, when 
 the Commons were getting ready to impeach Bucking- 
 
— 69 — 
 
 ham, he said to them: "I must let you know that I 
 will not allow any of my servants to be questioned 
 •amongst you, much less such as are of eminent place 
 and near unto me." The Commons replied that it 
 was "the ancient, constant and undoubted right and 
 usage of Parliaments to question and complain of all 
 persons, of what degree soever, found dangerous to 
 the commonwealth in abusing the power and trust 
 committed to them by the Sovereign." 
 
 They went on with their impeachment and pre- 
 sented their articles to the Lords. Two days after- 
 wards Sir John Eliot and Sir Dudley Digges, two of 
 their managers who had been especially severe in 
 their denunciations, were called out of the House, as 
 if the King had sent for them, and were carried by 
 water to the Tower. It was given out that their 
 arrest was for high treason, but Charles explained to 
 the House of Lords : " I have thought fit to punish 
 some insolent speeches lately spoken. I have been 
 too remiss hitherto in punishing such speeches as 
 concern myself" The Commons debated this vio- 
 lation of their privileges with closed doors, and came 
 to a resolution to stay all business till satisfaction 
 was given. Courage and a cool head triumphed; 
 Eliot and Digges returned to their seats in the House. 
 Nevertheless the King stopped their impeachment by 
 dissolving Parliament. He had been little more than 
 a year on the throne, and had already defeated a 
 constitutional power and violated the most essential 
 privilege of the House of Commons. 
 
 In that same session he had told them to remember 
 that Parliaments were altogether in his power for their 
 calling, sitting, or dissolution ; and that therefore, as 
 
— 70 — 
 
 lie should find the fruits of them good or evil, they 
 were to be or not to be. But in less than two years 
 Buckingham's disastrous expedition into France, and 
 the want of money, compelled him to confront the 
 most respectable House of Commons that had ever 
 convened. The "fruit" this time was the famous 
 Petition of Eight. He tried to cheat them by a 
 pretended assent, then assented squarely, and then 
 explained it away. Finally he prorogued the Parlia- 
 ment for some months, and of course violated that 
 statute in the meantime. 
 
 When they came together, after another proro- 
 gation, in 1629, the Commons would talk of nothing 
 but religion, illegal taxes, and arbitrary imprison- 
 ments. The King insisted that they should talk first 
 of his subsidies, and finding that they would not, 
 adjourned them for a few days by his peremptory 
 command. It was his prerogative to dissolve and 
 prorogue Parliaments, but it was their privilege, so 
 long as a session continued at all, to fix their own 
 adjournments. Nevertheless they quietly obeyed. 
 A few weeks later he tried that device again, and 
 then they understood themselves better. In the 
 midst of a debate Mr. Speaker Finch announced to 
 them a message commanding him "to adjourn the 
 House until Tuesday come seven-night following;" 
 but they kept their seats, saying they had somewhat 
 to finish. Eliot produced a remonstrance against the 
 illegal laying of tonnage and poundage, which he 
 desired the Speaker to read. Finch pleaded that the 
 King had adjourned the House.. The clerk was 
 called on, and he too refused. Then Eliot read it 
 himself and demanded the question. The Speaker 
 
— 71 — 
 
 only repeated the King's command, and proceeded to 
 rise. But the English Wood was up now, and HoUis, 
 Valentine, and other members of that stamp, held 
 him in his chair ; some of the patriots at the same 
 time locking the doors and bringing the keys up to 
 the table. The courtiers rushed to release the pinioned 
 Speaker, but they were too weak, and poor Finch sat 
 still at last, actually weeping, and crying that he 
 dared not put the question because he had the King's 
 commands. Of course it was impossible to make him 
 do it, and, knowing it was their last opportunity to 
 express their sentiments, they hastily drew up a pro- 
 test. While HoUis was reading it amid the cheers of 
 the House, the King had hurried down to the House 
 of Lords, expecting to find the Commons adjourned. 
 Not seeing the Speaker, he sent a messenger to bring 
 away the Sergeant with his mace. That would have 
 adjourned the House ; but the members stopped the 
 Sergeant and took from him the keys of the doors. 
 Then the King, seeing no Sergeant, dispatched the 
 Usher of the Black Eod to call up the Commons for 
 a dissolution; but the Commons would not let the 
 Usher in. Charles sent for the Captain of the Pen- 
 sioners and his guards, and ordered them to force the 
 door — but they came toO late. The Commons had 
 voted their protest, had adjourned themselves to the 
 tenth of March, and were gone. 
 
 When they met again, the King made an end of 
 that Parliament without even inviting the Commons 
 to the ceremony of dissolution ; telling the Lords, in 
 his speech, that the oifending members were vipers, 
 who must look for their rewards. 
 
 He kept his word better this time than he had 
 
72 
 
 done about the Petition of Eight. Eliot, Hollis, 
 Selden, Valentine, Coriton, Hobart, Hayman, Long, 
 and Stroud, the members who had been active in 
 getting up the protest and keeping the Speaker in 
 his chair, were summoned before the privy-council 
 and sent to the Tower. 
 
 Charles was determined to proceed against them in 
 the Star Chamber, and Lord Keeper Coventry set 
 about preparing the way for him by drawing an 
 opinion from the Judges. Those learned persons 
 were complacent enough to say, "that freedom of 
 speech only extends to things debated in Parliament 
 in a parliamentary course, and that a Parliament man, 
 committing an offence against the King or council in 
 Parliament, not in a Parliament way, may be punished 
 for it after the Parliament ended ; for the Parliament 
 shall not give privilege to any one contra morem 
 parliamentarium exceeding the bounds of his place 
 and duty." 2 Lives of the Chanc. 535 ; 1 Lives of the 
 Ch. Just. 385. And to meet the special case, they 
 added, that, " by false slanders to bring the Lords of 
 the council and the judges, not in a parliamentary 
 way, into the hatred of the people, and the Govern- 
 ment into contempt, was punishable, out of Parlia- 
 ment, in the Star Chamber, as an offence committed 
 in Parliament beyond the office, and beside the duty 
 of a Parliament man." 2 Lives of the Ch. Just. 385. 
 
 The imprisoned members sued for their writs of 
 habeas corpus, and were brought before the King's 
 Bench. The Judges had come to the opinion that 
 they were entitled to bail, but the King sent for them 
 and commanded them to deliver no opinion until they 
 should have consulted the other Judges ; and so, by 
 
— 73 — 
 
 quibbles and dodges, the matter was held undecided 
 for that term, and the prisoners were kept in close 
 custody during the whole of the long vacation which 
 ensued. 
 
 Toward the end of the vacation Chief Justice Hyde 
 and Judge Whitelock were sent by the Lord Keeper 
 down to Hampton Court. The King told them he 
 was willing the imprisoned members should be ad- 
 mitted to bail, notwithstanding their contumacy in 
 refusing to declare that they were sorry for having 
 offended him ; and that he should abandon the Star 
 Chamber proceedings and prosecute them in the 
 King's Bench. On the first day of Michaelmas Term 
 they were brought into court, and ordered, not only 
 to find bail for the present charge, but sureties for 
 their good behavior in future. Of course they refused 
 to give sureties, but were ready with bail for their 
 appearance. Thereupon they were, all sent back to 
 the Tower. 
 
 Then came the prosecution. The Attorney General 
 filed an ex-oflficio information in the King's Bench 
 against Sir John Eliot, Mr. HoUis and Mr. Valentine.' 
 Eliot was charged with words uttered in the Com- 
 mons' House, and particularly with saying " that the 
 privy council and judges had conspired to trample 
 under foot the liberties of the subject." Hollis and 
 Valentine were charged with the tumult on the last 
 day of the session, when Speaker Finch was held in 
 his chair. The defendants pleaded to the jurisdiction 
 of the court : " Forasmuch as these offences are sup- 
 posed to have been done in Parliament, they ought 
 not to be punished in this courts or any other except 
 in Parliament." Without waiting to hear counsel, 
 
 10 
 
— 74 — 
 
 Chief Justice Hyde at once said, " that all the Judges 
 had already resolved with one voice, that an offence 
 committed in Parliament, criminally or contemptu- 
 ously, the Parliament being ended, rests punishable 
 in the Court of King's Bench, in which the King by 
 intendment sitteth." Counsel for the defendants in- 
 sisted on being heard, but they might as well have 
 been silent. Hyde treated their arguments with scorn, 
 and concluded by observing: "As to what was said, 
 that an inferior court cannot meddle with matters 
 done in a superior, true it is that an inferior court 
 cannot meddle with the judgments of a superior court; 
 but if particular members of a superior court offend, 
 they are oft-times punishable in an inferior — as if a 
 judge shall commit a capital offence in this court he 
 may be arraigned thereof at Newgate. The behavior 
 of Parliament men ought to be parliamentary. Parlia- 
 ment is a higher court than this, but every member 
 of Parliament is not a court, and if he commit an 
 offence we may punish him. The information charges 
 that the defendants acted unlawfully, and they could 
 have no privilege to violate the law. No outrageous 
 speeches have been made against a great minister of 
 state in Parliament that have not been punished." 
 1 Lives Ch. Just. 386. The court overruled the plea 
 to its jurisdiction, and the prisoners refused to put 
 in any other. On the last day of the next term 
 judgment was given against them upon nihil dieit. 
 Mr. Justice Jones assured them that, heavy as was 
 their offence, their punishment should be laid on 
 "with a light hand;" and then he delivered the fol- 
 lowing sentence: 1. That every of the defendants 
 shall be imprisoned during the King's pleasure. 
 
— 75 — 
 
 Sir John Eliot to be imprisoned in ~^the Tower of 
 London, and the other defendants in other prisons. 
 2. That none of them shall be delivered out of prison 
 until he give security in this court for his good 
 behavior, and have made submission and acknowl- 
 edgment of his offence. 3. Sir John Eliot, inasmuch 
 as we think him the greatest offender, and the ring- 
 leader, shall pay to the King a fine of 2000Z., and 
 Mr. Hollis a fine of 1000 marks ; and Mr. Valentine, 
 because he is of less ability than the rest, shall pay a 
 fine of 500/." Macfarlane's Eng. B. 7. (1629.) 
 
 All of the defendants except Sir John Eliot were 
 liberated on bail, after a detention of eighteen months. 
 When he had lain four years in the Tower, his health 
 began to decline rapidly, and his friends prevailed 
 upon him to petition the King. Charles' only answer 
 to that petition weis : " It is not humble enough." 
 Then he sent another by his son, expressing his 
 hearty sorrow for having displeased his majesty, and 
 humbly beseeching him once again to command the 
 judges to set him at liberty ; and when he had re- 
 covered his health he might return back to his prison, 
 there to undergo such punishment as God had allotted 
 him. The lieutenant of the Tower took offence at his 
 sending the petition by another hand than his ; but 
 offered to deliver another for him, if he would humble 
 himself before his majesty, acknowledging his fault. 
 Eliot, thanking him for his friendly advice, replied 
 that his spirits had grown feeble and faint ; that when 
 he recovered his former, vigor he would think about 
 it. And so, as brave on a sick bed as other men 
 upon their feet, he died, a prisoner in the Tower, on 
 the 27th of November, 1632. 
 
— 76 — 
 
 • For eleven long years of illegality and torture and 
 swindling misgovernment, the voice of Parliament 
 was not heard again. But when they came together 
 in 1640 they had good memories. On the second 
 day of the session, Pym delivered a speech in which 
 he said: "The first of grievances are those which, 
 during this interval of eleven years, have been directed 
 against the liberties and privileges of Parliament ; " 
 and on the following day the House voted that the 
 proceedings remaining upon record in the King's 
 Bench and Court of Star Chamber against Sir John 
 Eliot, Mr. HoUis, and the other imprisoned members 
 of the Parliament of 1628, should be sent for and 
 referred to a committee. Two days afterwards they 
 resolved that the conduct of Mr. Speaker Finch, in 
 that Parliament, in not obeying the commands of the 
 House, and his adjournment by command of the 
 King, were breaches of privilege. They persisted in 
 talking about grievances before they would, talk about 
 money ; and the swift end of it was a dissolution after 
 a fruitless session of about three weeks. 
 
 That amazing person, his Majesty, was blind to the 
 fast quickening current and deaf to the cataract below. 
 As if the imprisonment of members for words spoken 
 in their own House had not made bad blood enough ; 
 as if Eliot had been forgotten — he committed several 
 members the very day after the dissolution. Their 
 speeches and official action in Parliament were the 
 only offences charged against them. Finally, in 1642, 
 he reached his climax, in attempting to bring Hollis, 
 Hazelrig, Pym, Hampden, .and Strode, the five leaders 
 of the Commons, before the House of Lords, to be 
 tried on a trumped up charge of levying war against 
 
— 77 — 
 
 him. A broken promise, a fiction, a lie of some 
 sort, was almost his sole device. Finding the Lords 
 troubled with doubts, he went himself to the Com- 
 mons' House, attended by his gentlemen-pensioners, 
 and followed by hundreds of courtiers, officers, and 
 soldiers of fortune, most of them armed with swords 
 and pistols, to seize the five members in their seats. 
 But they were gone. Next day the Commons re- 
 moved to the City and sat in Guildhall. On the day 
 following, accompanied this time only by his usual 
 attendants, the King sought them there. 
 
 As he rode through the streets, he was saluted with 
 cries of "privileges of Parliament, privileges of Parlia- 
 ment," and at the door of Guildhall he was confronted 
 by the Common Council, who had assembled as friends 
 of the Commons. To these gentlemen he dropped 
 his haughty tone, but he demanded their assistance 
 in bringing him the five members. He -vrent back 
 without them, and then by proclamation he com- 
 manded the magistrates to apprehend and carry them 
 to the Tower. London answered by an offer of her 
 sailors and famous apprentices to escort the Commons 
 safely back to Westminster, and they returned in a 
 triumphant procession of boats, watched by their troops 
 along the shore. The King had left London the day 
 before, not to return till he came as a prisoner. 
 Rushworth, Vol. 4, p. 474. 
 
 But the Commons were not done yet with the 
 invasion of their privileges. They impeached Mr. 
 Attorney General Herbert, by whom the accusation 
 against their members had been presented to the 
 Lords. The gist of his offence was " a breach of 
 privilege," and the fact that he acted by express com- 
 
— 78 — 
 
 mand of the King did not save him. The sentence 
 of the Lords was : " That he was disabled and made 
 incapable of being a member, assistant or pleader in 
 either house of Parliament, * * and that he should be 
 committed forthwith to the Fleet." 
 
 Just a hundred years ago, the Commons had secured 
 the King's assent to their proceedings in punishing 
 an act which, he was careful to say, touched his 
 dignity as well as their own. By suffering and out- 
 rage, they had reached a point when an attack upon 
 their privileges by the King himself could be pun- 
 ished in the person of his instrument. Power had 
 been forced upon them by denial of their rights. 
 
 Need any further evidence be offered, to prove that 
 it was only the necessity of circumstances, of a situa- 
 tion peculiar to that legislative body, which brought 
 about the concession of an independent jurisdiction 
 to protect their own privileges, and afterwards drove 
 the Commons to enlarge that jurisdiction ? Is there 
 any room to doubt that it was conceded substantially 
 because the law of the realm, the Constitution, had 
 failed to provide, and in the end was unable to pro- 
 vide, any of the means to protect them against the 
 obstructions to which they were exposed ? Or that 
 they were forced to enlarge it, because notwithstand- 
 ing its first extent, their privileges were not merely 
 unprotected but actively assailed by the co-existing 
 powers of the State ? 
 
 When liberty of speech was denied by the sovereign, 
 and punished as a crime by the Courts ; when their 
 personal liberty was violated by arbitrary arrests, and 
 the judges dared not bail them without the consent of 
 
— 79 — 
 
 their master ; when even these intimidated tribunals 
 were put aside, and in order to make sure work, their 
 members were tried by an unconstitutional court 
 which cared still less for law — it became simply a 
 question of existence. In all England no voice but 
 their own was ready to affirm their rights, no arm 
 but their own would move to protect them. Amid 
 such antagonisms it was absolutely inevitable that 
 they should undertake to determine for themselves 
 when their privileges were invaded; and this neces- 
 sity settled all the consequences. 
 
 It compelled a choice, whether to be a defenceless 
 party before other tribunals, or to be themselves a tri- 
 bunal. Not that' they could take the attitude of a 
 tribunal towards the power whose conduct had pro- 
 duced the necessity ; but when the claim to judge of 
 their own privileges was once made, it followed that, 
 although they could only argue and protest to the 
 Sovereign, they must, in all other directions where 
 they had power to do so, insist upon submission to 
 their judgment. Power to punish violations of privi- 
 leges so adjudged, was part of the position into which 
 they were forced, [a) 
 
 (a) Lord Campbell, who at all times sturdily maintained the power of 
 the House of Commons to punish for contempts, did not see fit to claim for 
 it an inherent necessity. When he was Attorney General he described its 
 true ground in the following words : " Privilege is given to the House of 
 Commons to be exercised against the Crown and the House of Lords ; unless 
 the Commons were themselves the tribunal by which their privilege is to be 
 judged, it would have been abolished long ago. The necessity of preserving 
 it from interference by the Courts of Law is not to be estimated from the 
 present improved state of the courts. The law of privilege was settled when 
 judges were the creatures of the Crown, and liable to be discarded if not obe- 
 dient,' and when the Kings themselves used to interfere in the administration of 
 justice ; which they did personally and as judges in ancient times, and afterwards 
 by letters to the judges, directing them how to act in particular cases ; a practice 
 
— 80 — 
 
 If it be true, then, tliat this power of the Commons 
 to adjudicate their own rights and punish their own 
 wrongs was conceded to them, effectively, in order to 
 supply a defect of the Constitution, and grew by rea- 
 son of its violations. What becomes of the argument 
 that a similar judicature is necessarily incident to the 
 existence of every supreme legislative assembly? 
 What is there in this example, which has always been 
 held up to us, which proves that such a power is con- 
 genital and inherent in all such bodies ? Is it the fact 
 that the Commons lived nearly three centuries with- 
 out possessing it ? It became necessary to that body 
 because the Constitution which established it could 
 not furnish it any other assured protection ; is it to be 
 implied that it belongs to legislative bodies established 
 by a Constitution which is careful at the same time to 
 authorize perfectly assured and absolutely sufficient 
 means by which they could be protected ? Is it seri- 
 ously contended that a power which accrued by reason 
 of a scramble for life among the forces of the State in 
 England, is essential to the existence of legislative 
 bodies under a Constitution which forbids such a con- 
 test by defining the limits of authority and rendering 
 encroachments impossible? It was not according to 
 the methods of the common law to act upon or affirm 
 
 several times checked by Statute, as, in particular, by Stat. 2 Edw. 3, c. 8, 
 and 18 Edw. 3, c. 4. And although the judges are now independent of the 
 Crown, there may still be a proper constitutional jealousy lest, at some time, 
 a desire of popularity, or of extending the jurisdiction of the Courts, should 
 lead them to decisions against wholesome and useful privilege, as mischievous 
 as those fomerly given iri submission to the King's authority. But during 
 the struggles of the House of Commons against the Crown, as in the reigns 
 of Elizabeth, James I, and Charles I, the privileges of the House would 
 clearly not have survived, if they had depended on the ruling of judges.' ' 
 Argument in StocMale vs. Hansard, 9 Adol. & Ell. 29. 
 
— 81 — 
 
 any general principle in giving- this power to the 
 House of Commons; in granting jurisdictions and 
 powers, that law never pretended to do anything more 
 than meet the exigencies of English life ; but if this 
 particular grant is susceptible of any generalization, it 
 is only to this extent : When the constitution under 
 which a legislative assembly exists, refuses or fails to 
 provide for its protection by authorizing adequate 
 means of punishing its wrongdoers ; a fortiori, when 
 such an assembly is compelled to struggle for existence 
 against the other powers of the State, it then becomes 
 necessary, not only in fact but in contemplation of law, 
 that it shall take into its own hands the means of pro- 
 tection by punishment. 
 
 In attributing common-law powers to institutions 
 in this country, the method of argument has been, that 
 the powers of English common-law institutions belong, 
 by an implication of necessity, to institutions of a simi- 
 lar character and similarly situated here. Even ac- 
 cording to this theory, it will be time enough to make 
 the implication when the similar situation occurs. 
 
 With sincere deference to the great authorities who 
 have so long argued from this premise, it is submitted 
 that any reference to the political necessities of the 
 time of the Tudors and the Stewarts, is only a delusive 
 anachronism. The impropriety of insisting that 
 obsolete necessity is inherent and vital, has been in- 
 dicated to us by the very body which first asserted it, 
 and in connection with this very matter of privilege. 
 In the time of James I, no privilege was more 
 essential to the independence of the House of Com- 
 mons, than its function of determining all questions 
 touching the elections and returns of its members ; 
 
 11 
 
— 82 — 
 
 yet, in the time of Victoria, at the instance of that 
 House, jurisdiction to determine controverted elec- 
 tions has been substantially turned over to the Courts 
 of Justice. By the " Elections Petitions and Corrupt 
 Practices at Elections " Act of 1868, the trial of such 
 questions in England was confided to the Court of 
 Common Pleas at Westminster; in Ireland, to the 
 Court of Common Pleas, at Dublin ; and in Scotland, 
 to the Court of Sessions. By this Act they declared 
 that it was not essential that they should themselves 
 apply the remedies, even in a matter which affected 
 their composition. 
 
 And by another Act, passed almost exactly a cen- 
 tury earlier. Parliament had revised and overruled 
 the ancient opinion as to the very amount of protec- 
 tion which was necessary to its members. From the 
 earliest days, it had been a part of a member's pro- 
 tection that his domestics should be included in the 
 privilege from arrest ; and if usage could be said to 
 establish a conclusion of law as to what was necessary, 
 it had done so in this matter, quite as much as in 
 respect to the manner in which the personal privilege 
 of the member himself, or the common privilege of 
 the assembly, should be protected. Yet, by the Act 
 of 10 Geo. 3, ch. 50, the privilege from arrest was 
 taken away from members' servants. 
 
 We have thus far referred only to historical mater- 
 ials. Let us inquire next how the question, whether 
 this power accrued by legal necessity, has been treated 
 by the judicial authorities. 
 
— 83 — 
 
 Probably, the notion that it was based upon an 
 inherent necessity, of wbich the law must take notice, 
 was not unfamiliar, even before its announcement 
 by Lord Ellenborough. Chief Justice De Grey so 
 characterized it in 1771, in Brass Crosby's case. 3 
 Wilson, 188. But it was Lord Ellenborough who 
 first gave to it judicial standing. In Burdett vs. 
 Abbott he said: "The mere power of removing actual 
 impediments to its proceedings would not be sujBicient 
 for the purposes of its full and efficient protection. ' 
 It must also have the power of protecting itself from 
 insult and indignity wherever offered, by punishing 
 those who offer it. * * And would it consist with the 
 dignity of such bodies, or what is more, with the 
 immediate and effectual exercise of their important 
 functions, that they should wait the comparatively 
 tardy result of a prosecution in the ordinary courts 
 of law, for the vindication of their privileges from 
 wrong and insult ? The necessity of the case would 
 therefore, upon principles of natural reason, seem to 
 require that such bodies, constituted for such purposes, 
 and exercising such functions as they do, should possess 
 the powers which the history of the earliest times 
 shows they have in fact possessed and used." 
 
 It is amazing that so eminent a judge should so 
 ignore the plain facts of constitutional history, and 
 confound a necessity which was produced by circum- 
 stances, with inherent necessity. After he had proven 
 that this power of the Commons was established by 
 usage, and affirmed by statute, — he might have said 
 it began by what was equal to a statute — such specu- 
 lations upon its origin were uncalled for; and, as they 
 were nothing more than speculations, they should 
 
— 84 — 
 
 have had no influence over later decisions. They 
 laid down a proposition, however, which habit and 
 reverence made acceptable, and they did have in- 
 fluence in a tribunal where this question of origin was 
 not irrelevant, but must be considered. 
 
 Burdett vs. Abbott was supposed to have demon- 
 strated that every supreme legislature, established 
 where the common law of England was in force, was 
 invested with power to punish contempts offered to 
 it, on the ground, that such power was a necessary 
 legal incident to its functions. Accordingly, in 1836, 
 the Judicial Committee Of the Privy Council held, in 
 the case of Beaumont vs. Barrett, 1 Moore's Privy 
 Council Cases, 59, that the House of Assembly of 
 Jamaica, being the supreme legislative assembly of 
 that island, had that power. 
 
 The appellant had been committed, on the Speaker's 
 warrant, for a breach of the privileges of the House 
 in publishing certain paragraphs in a newspaper. 
 Baron Parke, delivering the opinion of the Committee, 
 said : " It would appear, I think, to be inherent in 
 every legislative assembly that possesses a supreme 
 legislative authority, to have the power of punishing 
 contempts ; and not merely such as are a direct ob- 
 struction to its due course of proceeding, but such also 
 as have a tendency indirectly to produce such an 
 obstruction ; in the same way as the Courts of record 
 may not only remove or punish persons who actually 
 are interrupting their functions, but may also repress 
 those who indirectly impede the administration of 
 Justice by disparaging or weakening their authority." 
 
 This decision was the first fruit of Lord Ellen- 
 borough's dictum; and it is noteworthy as an example 
 
— 85 — 
 
 of the mischief that may be done by uncalled for 
 judicial speculations. 
 
 Five years later, a similar question came before the 
 Judicial Committee of the Privy Council, in the case 
 of Kielley vs. Carson and others, 4 Moore's Privy *^ 
 Council Cases, 63, when the same learned judge, re- 
 ferring to the earlier decision of the Committee in 
 Beaumont vs. Barrett, said : " Their Lordships do not 
 consider that case as one by which they ought to be 
 bound in deciding the present question. The opinion 
 of their Lordships, delivered by myself immediately 
 after the argument closed, though it clearly expressed 
 that the power was incidental to every Legislative 
 Assembly, was not the only ground on which that 
 judgment rested, and, therefore, was in some degree 
 extra-judicial; but, besides, it was stated to be, and 
 was, founded entirely on the dictum of Lord Ellen- 
 borough in Burdett vs. AhboU ; which dictum we all 
 think cannot be taken as an authority for the abstract 
 proposition, that every legislative assembly has the 
 power of committing for contempts." 
 
 The case of Kielley vs. Carson, which, notwith- 
 standing the slight reservation that Beaumont vs. 
 Barrett went also on another ground, overruled that 
 decision, was, on account of the importance of this 
 question, ordered to a second argument, and was then 
 heard by a committee which included Lyndhurst, 
 Lord Chancellor ; Denman, Chief Justice of Queen's 
 Bench; Abinger, Chief Baron of the Exchequer; 
 Cottenham, late Lord Chancellor; Campbell, Chan- 
 cellor of the Duchy of Lancaster ; Shadwell, Vice- 
 Chancellor; Erskine, Justice of Common Pleas; 
 Parke, Baron of the Exchequer, and Dr. Lushington, 
 
Judge of the Admiralty Court. Certainly it must be 
 accepted as a well considered case, and of the highest 
 authority. Baron Parke, in delivering the opinion 
 of the Committee, said : " The main question raised 
 by the pleadings was, whether the House of Assembly 
 [of New Foundland] had the power to arrest and 
 bring before them, with a view to punishment, a 
 person charged by one of its members with having 
 used insolent language to him, out of the doors of the 
 House, in reference to his conduct as a member of 
 the Assembly — in other words, whether the House 
 had the power, such as is possessed by both Houses 
 of Parliament in England, to adjudicate upon a con- 
 tempt or breach of privilege. 
 
 "Their Lordships are of opinion, that the House 
 of Assembly do not possess the power of arrest, with 
 a view to adjudication on a complaint of contempt 
 committed out of its doors. 
 
 " Their Lordships see no reason to think, that in 
 the principle of the common law, any other powers 
 are given them [the local legislatures] than such as 
 are necessary to the existence of such a body, and the 
 proper exercise of the functions which it is intended 
 to execute.. These powers are granted by the very 
 act of its establishment ; an act which on both sides 
 it is admitted, it was competent for the Crown to per- 
 form. This is the principle which governs all legal 
 incidents : Quando lex aliquid concedit, concedere 
 videtur et illud, sine quo res ipsa esse non potest. 
 In conformity to this principle we feel no doubt that 
 such an assembly has the right of protecting itself 
 from all impediments to the due course of its pro- 
 ceedings. To the full extent of every measure which 
 
— 87 — 
 
 it may be really necessary to adopt, to secure the free 
 exercise of their legislative functions, they are justi- 
 fied in acting, by the principle of the common law. 
 But the power of punishing any past misconduct, as 
 a contempt of its authority, and adjudicating upon 
 the fact of such contempt and the measure of punish- 
 ment, as a judicial body, irresponsible to the party 
 accused, whatever the real facts may be, is of a very 
 different character, and by no means essentially neces- 
 sary for the exercise of its functions, by a local legis- 
 lature, whether representative or not. All these 
 functions may be well performed without this extra- 
 ordinary power, and with the aid of the ordinary 
 tribunals to investigate and punish contemptuous 
 insults and interruptions." 
 
 In 1866, the question, whether a grant of legis- 
 lative power included a grant of power to punish 
 for contempts, came again before the Privy Coun- 
 cil, in the case of Doyle vs. Falconer, Law Rep. 
 1 Privy Council Cases, 328; and this time it came 
 in a shape which would have secured an affirriiative 
 answer, if such an answer could be given in any 
 case whatever. 
 
 A member of the Lower House of Assembly of 
 Dominica, having been guilty of disorderly and con- 
 temptuous conduct in the course of debate and in the 
 face of the House, was committed upon the Speaker's 
 warrant, for contempt. The case at bar-was an action 
 for trespass and false imprisonmetit. 
 
 After discussing the proposition, that the Assembly 
 had the power of commitment, because its functions 
 were analogous to those of the House of Commons, 
 which possessed that power, Sir James Colville, de- 
 
— 88 — 
 
 livering the opinion of the Committed, said : " If, 
 then, the power assumed by the House of Assembly 
 cannot be maintained by analogy to the privileges of 
 the House of Commons, or the powers of a court of 
 record, is there any other legal foundation on which 
 it may be rested ? It has not, as both sides admit, 
 been expressly granted. The learned counsel for the 
 appellant invoked the principle of the common law ; 
 and, as it must be conceded that the common law 
 sanctions the exercise of the prerogative by which the 
 Assembly has been created, the principle of the com- 
 mon law, which is embodied in its maxim Quando 
 lex aliquid coneedit, concedere videtur et illud, sine 
 quo res ipsa esse non potest, applies to the body so 
 created. The question, therefore, is reduced to this: 
 Is the power to punish and commit for contempts 
 committed in its presence, one necessary to the exist- 
 ence of such a body as the Assembly of ^Dominica, 
 and the proper exercise of the functions which it is 
 intended to execute ? It is necessary to distinguish 
 between a power to punish for a contempt, and a power 
 to remove any obstruction offered to the deliberations 
 or proper action of a legislative body during its sit- 
 tings ; which last power is necessary for self-preser- 
 vation. If a member of a colonial House of Assembly 
 is guilty of disorderly conduct in the House while 
 sitting, he may be removed or excluded for a time, or 
 even expelled; but there is a great difference between 
 such powers and the judicial power of inflicting a 
 penal sentence for the offence. The right to remove 
 for self-security is one thing; the right to inflict 
 punishment is another. The former is, in their lord- 
 ships' judgment, all that is warranted by the legal 
 
— 89 — 
 
 maxim that has heen cited, but the latter is not its 
 legitimate consequence." 
 
 It is worth while to call attention to the peculiar 
 position of Lord Denman in this matter. Only a 
 year before the decision of Kielley vs. Carson, he had 
 said, in Queen vs. Gossett, 3 Perry & Dav., 362 : " a 
 deliberative assembly must have the power in itself 
 to vindicate its privileges, which can only be by com- 
 mitting for contempt ; " and in the Sheriff of Middle- 
 sex, 11 Adol. & Ell., 273, he had said : " Eepresenta- 
 tive bodies must necessarily vindicate their authority 
 by means of their own ; and those remedies lie in the 
 process of committal for contempt." But he fully 
 concurred with the Committee in Kielley vs. Carson, 
 where it was said by Baron Parke, that " the reason 
 why the House of Commons has this power is not 
 because it is a representative body with legislative 
 functions, but by virtue of ancient usage and pre- 
 scription ; the lex et conseuetudo Parliamenti, which 
 forms a part of the Common Law of the land, and 
 according to which the High Court of Parliament, 
 before its division, and the houses of Lords and 
 Commons, since, are invested with many peculiar 
 privileges, that of punishment for contempts being 
 one." When two such judges as Denman and Parke 
 abandon opinions' recently announced by them, their 
 later conclusions must be supposed to have been con- 
 sidered with great deliberation. If authority can 
 settle such questions, this circumstance, and the num- 
 ber and eminence of the judges who composed the 
 Judicial Committee in the case of Kielley vs. Carson, 
 make the decision of that tribunal absolutely con- 
 
 12 
 
— 90 — 
 
 elusive as to the ground on whicli the jurisdiction o 
 the House of Commons stood. 
 
 It is to be observed that these decisions not onl; 
 deny the general proposition that power to punisl 
 contempts is held by the common law to be inheren 
 in legislative assemblies, but they deny the specific 
 proposition that the power exercised by the House o 
 Commons in contemplation of that law, stood upoi 
 the principle of self-protection. And it is particularly 
 important to observe that, while Lord Ellenborough' 
 dictum, in Burdett vs. Abbott, claimed that this powe: 
 was incident ex necessitate and- for the purpose of self 
 protection, the judgment in that case placed it upon i 
 different ground. In justifying the breaking of Bur 
 dett's outer door, all of the judges rested the powei 
 of the House upon the principle that the proceedingi 
 were in prosecution of a public offence. That powej 
 to do an act which was justifiable only because i 
 concerned the public interest, could not originate ii 
 the special right of se//'-preservation, needs no argu 
 ment. On its face it is a purely jurisdictional power 
 
 It should now be considered to be settled, therefore 
 by the highest English authority, that the power o 
 the House of Commons to adjudicate and inflict pun- 
 ishment for contempts was, in the language of Baror 
 Parke, merely one of " many peculiar privileges ' 
 which belonged to that body ; and that it existed b) 
 authority of positive law and not ex necessitate. 
 
 The force of these Privy Council decisions cannot b( 
 diminished by alleging that they relate to the powers 
 of colonial, or what the Committee called "local" legis- 
 latures. The question under consideration assumec 
 its broadest possible form ; it was : What powers doei 
 
— 91 — 
 
 the common law of England understand to be neces- 
 sarily included in the establishment of a legislative 
 assembly and in a grant of " legislative power ?" Of 
 course, in construing such a grant, the dimensions of 
 the grantee cannot be material. There might be sub- 
 jects about which a local legislature had no authority 
 to legislate at all, just as there are subjects about which 
 the Congress of the United States cannot legislate ; but, 
 in both cases, the power actually given is general 
 legislative power. And as to the matter of protection, 
 the necessity of a colonial legislature must be, in con- 
 templation of law, precisely the same as the necessity 
 of independent legislatures. When the functions of a 
 legislative body are those of government, affecting the 
 peace, good order, property, safety, and personal liber- 
 ties of the community which it governs, it must be 
 just as necessary that it should be undisturbed by 
 obstructions of any kind, as if those functions were 
 imperial. 
 
 But the consideration of chief importance in the 
 present discussion is, that the Privy Council were 
 called upon to determine what powers the common 
 law of England had concluded to be necessarily com- 
 prehended in a grant of legislative power, and that 
 they have decided that it had not concluded that power 
 to inflict punishment was so comprehended. 
 
 Are we any longer at liberty, then, to insist that 
 the necessity of this power is a conclusion of the 
 common law, and to found implications upon that 
 proposition ? 
 
— 92 — 
 
 2. We come now to tlie precedent of the Superioi 
 Courts of Justice, which has been relied upon, as 
 establishing a conclusion that the principle of self- 
 protection includes, in the cases of certain bodieS; 
 power to secure that protection by punishment. 
 
 The meaning of this reference to the courts must be 
 that such use of the power establishes a conclusion oi 
 law that it is necessary to self-protection, not only in 
 that case, but in analogous cases; and that the case of a 
 legislative body is analogous. We have therefore tc 
 consider, on what ground this power of the Superioi 
 Courts in England originally stood ; whether, namely 
 it accrued to them on the principle of self-protection, 
 or whether they exercised it merely as a function 
 vested in them by the common law just as all theii 
 other functions were vested in them, and as a mat- 
 ter of jurisdiction. * 
 
 Blackstone, whose reasons for the law are apt to b( 
 accepted as having the same authority with his state- 
 ment of the law, has been understood to affirm thai 
 the courts took this power incidentally, and because 
 otherwise they could not exercise the functions speci- 
 ally vested in them. After enumerating the contempts 
 which they might punish, he says : " The process o; 
 attachments for these and the like contempts must ne- 
 cessarily be as ancient as the laws themselves ; for th( 
 laws, without a competent authority to secure their ad' 
 ministration from disobedience and contempt, woulc 
 be vain and nugatory. A power, therefore, in the 
 Superior Courts of Justice, to suppress such contempt! 
 by an immediate attachment of the offender, result 
 from the first principles of judicial establishments 
 and must be an inseparable attendant upon ever] 
 
— 93 — 
 
 superior tribunal. Accordingly we find it actually 
 exercised as early as the annals of our law extend." 
 4 Bl. 286. 
 
 This is a very strong statement of the necessity that 
 such a power should be vested somewhere ; and the 
 learned Commentator very distinctly asserts that it 
 "results from the first principles of Judicial estab- 
 lishments;" and that it should be "an inseparable 
 attendant upon every superior tribunal." But this is 
 very far from an assertion that it was an implied 
 power of self-preservation ; since so accurate a writer 
 could not fail to perceive that, in that case, the power 
 should be an attendant upon inferior, as well as upon 
 superior tribunals. Whether consciously or not, he 
 was only occupied in pointing out that kind of neces- 
 sity which induced the grant of the power ; and has 
 affirmed nothing more than that the necessity for 
 " a competent authority," to secure the administration 
 of the laws from disobedience and contempt, required 
 the grant of summary power to the superior tribunals. 
 That he based their possession of such power upon 
 positive law, and not upon the doctrine of self- 
 preservation, or legal necessity, is shown from the 
 context; for he immediately adds that "though a 
 very learned author" (Gilbert, Hist. C. P. Ch. 3) 
 "seems inclinable to derive the process from the 
 Statute of Westminster 2, 13 Edw. I, c. 39, * * * yet 
 he afterwards more justly concludes, that it is a part 
 of the law of the land, and, as such, is confirmed by 
 the Statute of Magna Charta." 4 Bl. 286. 
 
 All that Blackstone absolutely knew of this power, 
 and all that can be known of it, is, that from ancient 
 times it was, by the law of the land, a power of certain 
 
— 94 — 
 
 courts in England. How it came to be so, is a matter 
 of argument, not of authority. Nevertheless the 
 opinion of the great Commentator is entitled to the 
 very highest consideration, and it plainly stands 
 against the pretension that the power of each of those 
 courts to punish any contempt offered to it, accrued 
 as part of the mere right of self-protection, and with- 
 out the help of any specific grant. 
 
 If we turn to the history of the power, and consider , 
 the line which separated the courts which did, from 
 those which did not possess it, we shall find the 
 clearest indications that it was regarded as a question 
 of jurisdiction, just as the other subjects on which 
 the courts might respectively act were so regarded. 
 
 In the first place, we know that power' to punish 
 officers charged with the administration of the law 
 under their control, and to punish contempts com- 
 mitted by any persons in their presence, was vested 
 in the Sheriff's torn, in courts-leet, and in the coro- 
 ner's court ; Hawkins P. C, b. 2, c. 1, Sec. 14 ; c. 9, 
 Sec. 41; c. 10, Sees. 1, 17; c. 11, Sec. 1. Qriesly's 
 case, 8 Coke, 38; Garnett vs. Ferand, 6 Barn. & 
 Cress., 625 ; 3 Bl. 35 ; that it was not vested in courts- 
 baron, hundred-courts, or county-courts, 8 Bl., 25, 
 83-35; and that the former were courts of record, 
 while the latter were courts not of Record. 4 BL, 273 ; 
 Hawkins, b. 2, c. 10, Sec. 1 ; c. 11, Sec. 1 ; 8 Bl., 33-35. 
 
 Now this discrimination cannot have been made on 
 account of the inferior importance and dignity of the 
 latter; for they were very ancient and absolutely 
 indispensable parts of the general system of judicial 
 justice ; and in those times " the county court was a 
 court of great dignity and splendour ; the bishop and 
 
— 95 — 
 
 the ealderman (or earl), with the principal men o£ 
 the shire, sitting therein to administer justice both in 
 lay and ecclesiastical causes." 3 BL, 36. Nor is it a 
 sufficient explanation to say that, as fines and com- 
 mitments must go of record, they could hot be awarded 
 by courts which had no record ; for the real question 
 is, why should not the county-court have been a court 
 of record, at least for the purposes of this power? 
 The distinction lay deeper ; and was expressed in the 
 fact that the courts of record were " the King's courts, 
 in right of his crown and royal dignity," 3 BL, 24; 
 even a court-leet " being a King's Court, granted by 
 charter to the lords of hundreds or manors," 4 Bl., 
 273 ; while the freeholders of the county, in right of 
 their freeholds, were the real judges of the county- 
 court, the Sherifi" being only its ministerial officer, 
 3 BL, 36 ; so that, like a court-baron or hundred-court, 
 it was a court of private men. 3 BL, 25. Equally 
 with the court of the Sheriff in his torn, it was estab- 
 lished by the law of the land, and, as it acted by the 
 consent of the King, at least in the theory of the 
 King himself and of the lawyers, it might be said to 
 derive its powers from the crown, 3 BL, 24 ; neverthe- 
 less it differed radically from the courts of record in 
 this, that the latter, being the King's courts, and 
 receiving their commissions and powers from him, 
 either immediately or by charter, represented directly 
 the judicial power of the crown, which could not be 
 said of the county-court; since that tribunal acted 
 by his consent merely, and was a court of private 
 persons. This leads at once to a conclusion touching 
 the very nature of contempts, and of the power 
 employed in punishing them. They were not re- 
 
— 96 — 
 
 garded as merely obstructions of the particular func- 
 tionary charged with the administration of justice ; 
 they were offences against the judicial power of the 
 King; and therefore it was the special business of the 
 King's courts to punish and repress them ; just as it 
 was of their jurisdiction to take cognizance of all 
 other offences against the King, [a) 
 
 Thus it appears that the yery fact, that only those 
 common law courts which were courts of record could 
 fine or commit for contempts, is proof that the power 
 was one of jurisdiction, and not a power accruing 
 from the right of self-preservation, {b) 
 
 That this is the true character of the power, is 
 recognized, in the distinctest manner, by the older 
 writers on this subject. In Griesley's case, 8 Coke, 38, 
 it appears that one Kingston was chosen constable 
 by the jurors and presenters of a leet-court, and that 
 being present in the court, he was charged by the 
 Steward to take the oath, " which he utterly refused 
 to do, and departed' in contempt of the Court ; " 
 
 (a) In an anonymous case, Willes, 459, it was held that a contempt 
 of court was a breach of the peace. In New Orleans vs. Steamship Company, 
 20 Wallace, 387, Mr. Justice Swayne said : " Contempt of court is a specific 
 criminal offence. The imposition of a fine was a judgment in a criminal case." 
 
 (6) 3 Steph. Com. on Laws of England : " All courts of record are 
 courts of the sovereign, in right of the crown and royal dignity; and 
 therefore every court of record has an authority to fine and imprison for 
 contempt of its authority. * * * But the common-law courts not of 
 record are of inferior dignity, and in a less proper sense the King's courts ; 
 and these are not intrusted with any power to fine and imprison the subjects 
 of the realm, unless hy express permission of some act of Parliament." 
 And Blackstone, B. 3, p. 24, says : " All courts of record are the King's 
 Courts, * * and therefore no other court hath authority to fine and 
 imprison. * * A court not of record is the court of a private man ; whom 
 the law will not intrust with any discretionary power over the fortune or 
 liberty of his fellow subjects." 
 
— 97 — 
 
 whereupon he was fined one hundred solidi by the 
 Steward. And because the said fine was not paid, the 
 defendants, bailie's, &c., distrained his cattle. King- 
 ston now brought his replevin. The first question 
 was, "whether the Steward might impose a fine in 
 this case." The whole discussion turned upon the 
 question, whether the judge must confine himself to 
 an award of judgment generally, that the offender 
 was in miserieordia domini regis; leaving the amerce- 
 ment, as in cases of indictment, to be afiered or taxed 
 by the afierors ; or might himself proceed at once to 
 settle the sum to be paid for the default. Coke, 
 mingling his own learning, in his usual manner, with 
 the arguments of the case, puts the principle in the 
 following passage: "There are two manner of offences, 
 some done out of court, and some done in court; of 
 those which are done out of court, the jurors of the 
 leet have conusance, and therefore power to present 
 them ; but for contempts and misdemeanors in court, 
 before the Steward himself, he hath conusance of them, 
 and therefore may impose a fine for them, and thereof 
 need not make inquiry ; so that those who have conu- 
 sance of the thing are fit to impose a fine or amerce- 
 ment for the same thing." And Sergeant Hawkins, 
 b. 2, c. 10, Sec. 19, says : " But if the amercement be 
 for a contempt of the court, it may be settled by the 
 judge himself, and needs no other afferement ; for the 
 judge of every court of record is the most proper ^judge 
 of all contempts offered to such court; and an amerce- 
 ment of this kind is in the nature of a fine, and is so 
 called in some books." And in another place, he says : 
 " If the contempt happen to be done by a person 
 present in the court, and it appears either from the 
 
 13 
 
— 98 — 
 
 confession of the person, or on his examination upon 
 oath, or by the view or immediate observation of the 
 judges themselves, the court may immediately record 
 the crime, and commit the offender, and also inflict 
 such punishment as shall seem proper." 
 
 We gather from these statements of Coke and 
 Hawkins, that punishment of contempts was simply 
 the administration of criminal justice, and had nothing 
 whatever to do with self-protection. The only ques- 
 tion was, who should have conusance of the offence ; 
 and the common law determined that the judge was 
 the proper person ; in a matter which occurred in his 
 view or immediate observation, or which was ascer- 
 tained by the confession of the person, or by his 
 examination upon oath. 
 
 Finally, the pretension that this power originally 
 accrued to the courts of record ex necessitate, and that 
 it differed, in this respect, from their other jurisdic- 
 tional powers, is completely refuted by the distinction 
 made between superior and inferior courts of record 
 in matters of contempt. The former were authorized 
 to punish contempts generally, whether committed in 
 court or elsewhere; the latter could punish only those 
 contempts which were committed in court. In other 
 words, the higher courts of record had jurisdiction to 
 punish summarily such as might indirectly impede 
 the judicial power, as well as those which immediately 
 and directly obstructed it ; while the lower courts of 
 record could punish only direct obstructions. This 
 distinction was even more significant than that be- 
 tween courts of record and courts not of record. It 
 was one which necessity could not establish ; it could 
 only be the work of positive law, and could only 
 
— 99 — 
 
 happen in the process of distributing jurisdictional 
 powers. 
 
 This matter was discussed in Queen vs. Lefroy, 
 L. R. 8 Q. B., 134, where the question related to the 
 power of the, county courts established by statute. 
 Mr. Justice Mellor said : " In 2 Hawkins, P. C. b. 2, 
 e. 3, it is said the old jurisdiction of the one supreme 
 court was introduced after the conquest, in which the 
 grand justiciary acted as viceroy; and out of this court 
 was erected the courts of Queen's Bench, Common 
 Pleas and Exchequer ; and therefore the foundation 
 of the authority of these courts, as to contempts com- 
 mitted in court, and contempts committed out of court 
 having a tendency to affect the administration of 
 justice, was, that they were part of the great court or 
 aula regis. The authority of the inferior courts of 
 record has no such foundation ; the matter stands on 
 quite a different footing as to them ; and no instance 
 has been found where this power has been assumed or 
 justified by any decision, otherwise than for contempts 
 committed in face of the courts." The last words refer 
 to the power of the inferior courts of record. 
 
 In the same case, Mr. Justice Quain said : " No au- 
 thority is to be found for the existence of any such 
 powers in an inferior court of record. The Superior 
 Courts have always had the power of proceeding for 
 contempts not committed in court. They had it, as 
 Chief Justice Wilmot points out, by immemorial usage." 
 Wilmot's Opin., 254, He adds that it was not thought 
 proper to intrust such power to the inferior courts of 
 record. 
 
 The power of courts of record to punish for con- 
 tempts could not be placed more distinctly on the 
 
— 100 — 
 
 ground of jurisdiction vested by positive law, than i 
 is in these opinions. According to one of the learned 
 judges, the larger jurisdiction of the Superior Courts 
 of Record belonged to them as parts of the aula regis, 
 the King's own Court ; and according to the other, bj 
 immemorial usage. It was also as King's Courts 
 that the inferior courts of record exercised the mor< 
 restricted power, but the King restricted them to tha 
 narrower jurisdiction, because it was not convenien 
 that they should exercise the larger. 
 
 A recent case, decided in 1835, shows still mon 
 plainly that the English Courts, instead of deriving 
 the power from necessity, as a remedy of self-protection 
 base it upon actual grant. In the King vs. Faulkner 
 2 Cromp. Mees. & Eosc, 525, the power was deniec 
 because the grant was not clear. The act of 1 and ' 
 Wm. 4, c. 56, had created a Court of Bankruptcy, con- 
 sisting of four judges and six commissioners, who, how- 
 ever, were not intended to meet as one tribunal. Thej 
 were divided into several branches, one of which, com- 
 posed of four judges, constituted a Court of Review 
 while each of the others, composed of three Commis- 
 sioners, constituted a Court of Sub-division. These 
 commisioners were also authorized to act singly. 
 
 A question, whether a Commissioner, sitting separ^ 
 ately, had power to commit for contempt, arose undei 
 the first clause of the statute, which provided that "th( 
 same court shall be and constitute a court of law anc 
 equity, and shall, together with every judge and com' 
 missioner thereof, have, use, and exercise all the rights 
 incidents, and privileges of a court of record, * * a 
 fully, to all intents and purposes, as the same are used 
 exercised and enjoyed by any of his Majesty's Court 
 
— 101 — 
 
 of law, or Judges at Westminster." There can be no 
 doubt that one of the "incidents" of a court of record, 
 when that term is used broadly, was to commit for 
 contempt ; and if the words of this clause wet-e to be 
 accepted in that sense, a single commissioner would 
 clearly be authorized by them so to commit. But, 
 instead of seizing upon an opportunity to attribute 
 this power, the Court of Exchequer explained away 
 the literal force of the provision, and denied the 
 power. 
 
 Chief Baron Abinger said : " I think so important 
 a power, which requires the greatest nicety in its ex- 
 ercise, should not be vested merely by an inferential 
 construction of an Act of Parliament, because in a gen- 
 eral clause it invests him with the character of a judge 
 of record. It is sufficient to say, if we are bound to 
 find a meaning for every word in that clause, that the 
 incidents and rights given to the judges of record 
 were meant to protect him from being liable to the 
 consequences of an action for any act he might do in 
 the exercise of his functions ; but it would not follow 
 from that, that the legislature intended to give him 
 all the powers of a Judge of a Court of Eecord to the 
 full extent." And Alderson, B., said : "It seems to 
 me that the first clause may have a very reasonable 
 construction, without giving to the commissioner sit- 
 ting alone the power contended for on the present 
 occasion. * * * jf yQ^ ^a,ke the words to the let- 
 ter, it would give to every commissioner the power 
 and privilege of a court of record, as fully as they are 
 exercised at Westminster. / think it would require 
 very strong words to induce the court to come to that 
 conclusion. The words of the Act may have a very 
 
— 102 — 
 
 sensible construction by being construed distributively ; 
 tbat is to say, by giving to Courts of Bankruptcy the 
 incidents and privileges of a court of record, and by 
 giving to the judges and commissioners of courts oi 
 bankruptcy the rights, incidents and privileges that 
 belong to a judge of a court of record. No one of the 
 rights, privileges and incidents of a Judge of a Court 
 of record necessarily carries with it the power of com- 
 mitting for contempt ; and therefore, it seems to me, 
 that the first clause, by being construed distributively, 
 may have a perfectly sensible construction, being in- 
 tended to constitute the Court as a court of record, 
 with all its rights, incidents and privileges ; that is, 
 having its records treated as all other records of an- 
 other court, and each of its judges having the same 
 protection and privileges which judges of the courts 
 of record have, of not being answerable, in the shape 
 of actions, for any acts which they have done in their 
 judicial capacity and character. That will give a clear 
 and sensible construction, without giving this irre- 
 sponsible power." 
 
 It may be remarked just here, that the court had 
 in hand the construction of a grant, just as we have, 
 in the question before us. In that case, however, it 
 was plain that, taken literally, the words of the grant 
 would give the power ; while not a word descriptive 
 of such a power appears in the Constitution of the 
 United States ; and the power itself must be an im- 
 plication. Instead of having to consider whether 
 they might graft anything upon the grant by impli- 
 cation, they had to consider whether they might not 
 take something from it by construction ; and Baron 
 Alderson remarked that it would " require very strong 
 
— 103 — 
 
 words " to induce the court to conclude that the power 
 was granted. 
 
 If the spirit of the courts of common law, in de- 
 termining whether this peculiarly judicial power was 
 conferred upon a judicial person, were applied in 
 determining whether it has been conferl-ed, by impli- 
 cation, upon legislative functionaries, there never 
 would be an implication that it was conveyed by a 
 grant of mere legislative power. 
 
 The special purpose, however, for which Rex vs. 
 Faulkner is now cited, is to show that the English 
 Courts have steadily, from the beginning down to the 
 present time, held, that the English common law has 
 never placed the power of judicial bodies to punish 
 contempts, on the ground of inherent necessity, or on 
 the principle of self-protection ; but that they have 
 always placed it upon positive grant, and have been 
 very strict in construing the grant. 
 
 Let us turn from the history of this power of the 
 courts in England, to what has been done in the same 
 matter in our own country. It will appear by our 
 legislation, that we have determined that this power 
 is not inherent in the very constitution of a superior 
 court ; and that the possession and extent of it have 
 been treated as a question of polity and convenience. 
 
 The "Judiciary Act authorized the Courts of the 
 United States " to punish, by fine and imprisonment, 
 at the discretion of said courts, all contempts of au- 
 thority in any cause or hearing before the same." In 
 consequence of certain decisions, by which this pro- 
 vision was held to include the full measure of the 
 common law power. Congress limited the authority 
 of the courts by a rule of construction. The act of 2 
 
— 104 — 
 
 March, 1831 (4 Stat. 487) provided: "that the power 
 of the several courts of the United States to issue 
 attachments and inflict summary punishments for 
 contempts of court, shall not be construed to extend 
 to any cases except the misbehavior of any person or 
 persons in the presence of said courts, or so near 
 thereto as to obstruct the administration of justice, 
 the misbehavior of any of the officers of said courts 
 in their official transactions, and the disobedience or 
 resistance by any officer of the said courts, party, 
 juror, witness or any other person or persons, to any 
 lawful writ, process, order, rule, decree or command 
 of the said courts." 
 
 This statute cuts off a large part of the power vested 
 by the common law in the English superior courts of 
 record; indeed almost all that distinguished them from 
 the inferior courts of record. For example, the courts 
 of the United States cannot punish, as a contempt, the 
 offer of a bribe to the judge, or threats addressed to a 
 witness, juror or party, not in its presence ; or a libel- 
 ous publication concerning pending proceedings. 
 The common law held these acts to be obstructions of 
 the administration of justice; but Congress has de- 
 clared that power to punish them as contempts is not 
 necessary to the courts of the United States. In other 
 words, it has been declared that the functions of a 
 superior court of record do not imply, as an incident 
 necessary to the exercise of those functions, power tc 
 punish every act which obstructs them. For some of 
 these obstructions, the same statute provides the or- 
 dinary and more deliberate remedy of indictment and 
 trial by jury ; but for others, such as libelous and 
 contemptuous publications, tending to impede justice. 
 
— 106 ^ 
 
 no remedy at all is provided or permitted. However 
 injurious they may be, it seems to have been deemed 
 more important to avoid the risk of unduly restricting 
 the liberty of the citizen, and especially the freedom 
 of the press, than to protect the courts from such con- 
 sequential obstructions as may be caused by abuse of 
 that liberty. 
 
 The opinion of Congress, as to what protection is 
 necessary to the administration of justice, is expressed 
 in the second section of the Act of 1831, which pro- 
 vides : " That if any person or persons shall, corruptly, 
 or by threats or force, endeavor to influence, intimi- 
 date, or impede any juror, witness, or ofiicer in any 
 court of the United States, in the discharge of his 
 duty ; or shall, corruptly, or by threats or force, ob- 
 struct or impede, or endeavor to obstruct' or impede, 
 the due administration of justice therein, every person 
 or persons so offending shall be liable to prosecution 
 therefor, by indictment, and shall, on conviction 
 thereof, be punished by fine not exceeding five hun- 
 dred dollars, or by imprisonment, not exceeding three 
 months, or both, according to the nature and aggrava- 
 tion of the offence." 
 
 It appears, then, that, in dealing with this matter 
 of contempts and obstructions, the legislature has, de- 
 cided, in the case of the courts at least, that immem- 
 orial usage had not established "the measure of neces- 
 sity," nor indeed any necessity at all. It has been 
 assumed that the whole matter belongs to the domain 
 of polity, and is one of convenience. 
 
 In view of the fact that the claim of legislative 
 power to punish contempts has been largely built 
 upon what was declared to be the analogous necessity 
 
 14 
 
— 106 — 
 
 of such power to the courts, it is worth while to notice 
 the bearing of these later conclusions upon some of 
 the exercises of that power by Congress. Duane was 
 imprisoned for defamation of the Senate, and Ander- 
 son for oflfering bribes to members of the House of 
 Representatives. These oifences were punished by 
 those bodies, respectively, as eontempts ; and the pre- 
 tension of power to inflict the punishment was 
 supported by reference to the fact that such power 
 belonged, ex necessitate, and on the principle of self- 
 preservation, to every court of justice. It was claimed 
 that it must exist in all analogous cases, and that the 
 cases of legislative and judicial bodies were, in this 
 respect, analogous. These two bodies, afterward, 
 united in declaring, by the Act of 1831, that, in the 
 example referred to, power to punish precisely similar 
 obstructions did not exist, ex necessitate. 
 
 That statute, it should be remembered, was 
 demanded of Congress by the common judgment of 
 the country. Therefore, when that supreme tribunal 
 decided that the power of summary punishment must 
 be not only reduced, but very, precisely defined 
 before it should be entrusted, even, to functionaries 
 who were designed wholly for judicial and deliberate 
 action, equipped with appropriate methods, and pro- 
 tected, to a great degree, from passion and party 
 feeling, by a life tenure of office ; it is a fair implica- 
 tion that, on the principles of that judgment, a power 
 without definition or limits is not fit to be exercised 
 by bodies whose very function of making law tends 
 to incapacitate them for a judicial application of law ; 
 who have not, and cannot have any sufficient means 
 of perfect inquiry ; who must inevitably be com- 
 
— 107 — 
 
 posed of the representatives of political parties, and 
 who are beyond the reach of impeachment for an 
 abuse of the power. By that statute, the country has 
 effectively pronounced judgment against all preten- 
 sions to undefined and discretionary power over 
 personal liberty, wherever they might be set up. 
 
 It is submitted that our examination of history and 
 authority now justifies the following conclusions : 
 
 First. Power to punish contempts was acquired by 
 the House of Commons and by the King's Courts by 
 grant. It was granted to them by the common law ; 
 in other words by the British Constitution ; just as 
 the specified powers of our legislative and judicial 
 departments have been granted by the Constitution 
 of the United States. 
 
 Second. It was not granted on the ordinary princi- 
 ple of self-preservation, but because it was proper and 
 convenient that they should have it, and as a power 
 of jurisdiction. 
 
 Third. And, as a consequence or re-statement of 
 these conclusions, the common law did not pretend to 
 establish, and did not establish thereby, any conclu- 
 sion as to what powers were necessarily incident to 
 legislative assemblies and judicial bodies. 
 
 Fourth, When the question, what is necessarily 
 incident to a legislative assembly, at last presented 
 itself, the common law of England denied, as we have 
 seen, that power to adjudicate and inflict punishment 
 for contempts was incident to legislative assemblies, 
 or was included in a common law grant of legislative 
 power. 
 
— 108 
 
 III. 
 
 If the foregoing conclusions be true, it is difficult to 
 perceive how a reference to the common law can en- 
 able us to imply that this power is incident to the very 
 existence of the two houses of Congress ; since we 
 should turn to that law only to learn that it denied 
 the very proposition which we propose to establish. 
 
 But we propose now to show that, even if the com- 
 mon law had in fact held that such power was inci- 
 dent to legislative assemblies, that conclusion would 
 be of no force whatever, in determining whether it be- 
 longs to the bodies established by our written Consti- 
 tution. In other words, we propose to show that no 
 reference to the common law, touching this matter, is 
 authorized or permitted. 
 
 We are aware of the gravity of this undertaking. 
 It is entered upon in face of a common assumption, 
 for more than three-quarters of a century, that the 
 common law, known as lex parliamenti, aids us in de- 
 termining the " incidental powers " of these bodies, 
 even where the Constitution contains no expression 
 which refers to it. Commonly this assumption is only 
 implied; but it is stated explicitly by the learned 
 commentator on the Constitution. In speaking of the 
 very power now in question, he says : " We may re- 
 sort to the common law to aid us in interpreting such 
 instruments and their powers ; for that law is the 
 common rule by which all our legislation is inter- 
 preted. It furnishes principles equally for civil and 
 criminal justice, for public privileges and private 
 
— 109 — 
 
 rights. Now, by the common law, the power to pun- 
 ish contempts of this nature belongs incidentally to 
 courts of justice and to each house of Parliament. No 
 man ever doubted or denied its existence as to our 
 colonial assemblies in general, whatever may have 
 been thought as to particular exercises of it." Story, 
 sec. 846. 
 
 It is immaterial to this part of our inquiry, that the 
 hypothesis on which the learned author built his 
 theory — namely, that power to punish contempts 
 belonged "incidentally" to each house of Parliament — 
 was itself unfounded, and has been swept away by the 
 highest common law authorities. The question which 
 we are now examining, is, whether, conceding it to be 
 true that the common law held such power to be inci- 
 dent to legislative assemblies, any implication that 
 similar power has been granted by our written Con- 
 stitution to our legislative assemblies, can be based 
 upon that fact. Has the common law anything to do 
 with the matter ? - 
 
 It has never been questioned that, for purpose^ of 
 " interpretation," in the proper sense of that word, we 
 must often resort to the common law, in order to un- 
 derstand the Constitution. Provisions which employ 
 its phraseology, necessarily refer the interpreter to 
 the source from which they were borrowed, for an ex- 
 planation. Not merely the verbal meaning, but the 
 operation of a provision may be determined in this 
 way. Familiar examples of this process, which have 
 undergone judicial determination, are found in the 
 provisions relating to the privilege of "the writ of 
 habeas corpus," to the President's " power to grant 
 pardons," to " due process of law," and to the right of 
 
— 110 — 
 
 trial by "jury." All of these are common law phrases 
 understood to be used technically ; therefore it /is only 
 from that law that we can learn what writ of habeas 
 corpus it was, the privilege of which was not to be 
 suspended except in certain cases ; or how much was 
 understood to be included in power to grant pardons ; 
 or what had been recognized as due process of law ; 
 or what was meant by a jury. The principle applied 
 in these instances was perhaps still better illustrated 
 by the provision which extended the judicial power 
 of the United States to " all cases of admiralty and 
 maritime jurisdiction." It was held in Waring v. 
 Clarke, 5 Howard, 454, et seq., that a collision occur- 
 ing on tide-water was " a case of admiralty jurisdic- 
 tion," notwithstanding it occurred also within the 
 body of a county ; and the same rule is now applied 
 to cases happening above tide- water. When the Con- 
 stitution was adopted, such a tort was understood in 
 this country to be of admiralty jurisdiction, but was 
 not so understood in England; and the Supreme 
 Court held that these words had reference to the un- 
 derstanding here. In short, the general principle of 
 interpretation has been, that the words of the Consti- 
 tution may be explained by reference to the particular 
 law from which they were borrowed, and that the 
 Constitution itself intended to refer the interpreter tb 
 that source. 
 
 But in the matter under consideration, the Consti- 
 tution cannot be said to have referred us to some other 
 law in any such manner. It is alleged to have re- 
 ferred in some way to a power incident, by some other 
 law, to legislative assemblies ; but there is no pretence 
 that it has done so by the use of any peculiar words 
 
— Ill — 
 
 or phrases touching legislative assemblies or legisla- 
 tive power. It simply provides that " all legislative 
 powers herein granted shall be vested in a Congress of 
 the United States, which shall consist of a Senate and 
 a House of Representatives ;" and afterwards grants 
 - those powers. The single intent of the provision in 
 which legislative powers are mentioned, was to declare 
 where those powers should belong, and that the body 
 to which they belonged should consist of a Senate and 
 a House of Representatives. It did not pretend to 
 deal with the subject of legislative power, nor did it 
 even characterize those bodies as legislative assem- 
 blies. It neither calls for nor admits of reference to 
 external sources for explanation of its meaning. It 
 establishes simply a fact ; the fact, namely, that two 
 bodies exist, and that those bodies are parts of a Con- 
 gress which has certain legislative powers, and are 
 themselves, therefore, actually legislative assemblies. 
 The sole question, then, is whether this fact refers us 
 to any other law for an implication of power known 
 to be granted by that law. 
 
 The grounds of the argument which undertakes to 
 work out this implication, are necessarily as follows : 
 It is a fact that the authors of the Constitution es- 
 tablished two legislative bodies ; and it is a fact that 
 the common law, recognized and adopted by them, 
 gave to such bodies the power to punish contempts. 
 Therefore they must have intended that these bodies 
 should have the power which their common law gave 
 to all such bodies. 
 
 This statement of the argument cannot be met by 
 giving to it merely a new form ; by saying, for 
 example, that it must be supposed to have been the 
 
— 112 — 
 
 legal intent of the Constitution that the bodies which 
 it established should have whatever powers its authors 
 held to be necessary to the existence and safety of 
 such bodies ; and that their common law may be 
 referred to, in order to ascertain what they did hold 
 to be necessary. 
 
 This would only be to say, that, inasmuch as they 
 had a common law, it must be supposed to have been 
 their intent that it should operate, although not incor- 
 porated into the Constitution by a reference to it ; and 
 therefore that it should operate as their common law. 
 If it was to operate when not referred to, the proposi- 
 tion comes at last to this : that, besides the Constitu- 
 tion, its authors had another law ; and that when the 
 written instrument gave existence to an institution, 
 that other law gave it power. It is idle to talk about 
 reference to the common law when none is made. 
 Whatever effect that law should have, in such a case, 
 must take place simply because it co-existed with the 
 Constitution, and consequently by its own authority. 
 We are reduced to suppose that the framers and 
 adopters of the Constitution meant to do part of their 
 work by written compact and part of it by their 
 unwritten common law. 
 
 That the common law should clothe with power 
 an institution to which it gave existence, is familiar 
 enough doctrine ; but that it cannot perform that 
 office for a creature of legislatibn, has been settled by 
 a line of decisions which cannot be shaken. It is the 
 settled doctrine, in reference to the courts of the 
 United States, that they may exercise common law 
 powers only when the Constitution or the laws have 
 made them constitutional or statutory powers ; and 
 
— 113 — 
 
 that they cannot look to the common law as a source 
 of jurisdiction. 
 
 The principle of that class of decisions is, that the 
 common law regulates the powers of institutions 
 created by our written law, only just so far as the 
 written law, by some phrase of adoption, applies it to 
 that institution ; and this principle applies as per- 
 fectly to the legislative and executive as to the 
 judicial institutions of this country. It is not our 
 present business to deal with the question. Whether 
 the common law of a State can clothe its legislative 
 assemblies with this power, unless it is thus incor- 
 porated by the State Constitution ; but it may be 
 added, that the same reasoning which forbids the 
 operation of common law, in the case of the legislative 
 assemblies of the United States, would forbid its 
 application in a like case to those of the States. 
 
 This assumption, that the authors and adopters of 
 the Constitution intended that a common law power 
 should attach, incidentally, to the new legislative 
 assemblies, should rest on clear affirmative evidence 
 that such an intention was universal ; since the 
 Constitution was not to be imposed upon all of the 
 members of the old Confederation by a vote of the 
 majority ; and certainly no such assumption can 
 stand if there is evidence that the people of any 
 State did not so intend when they accepted the 
 Constitution. This negative evidence exists. The 
 protest made by the General Assembly of Virginia, 
 only twelve years after the people of that State had 
 voted to adopt that instrument, must be regarded as, 
 for this purpose, a cotemporaneous exposition of their 
 intentions. On the 11th of January, 1800, the 
 
 15 
 
— 114 — 
 
 General Assembly of Virginia sent to the senators 
 from that State an instruction, and to the represen- 
 tatives a request : " To oppose the passing of any law 
 founded on, or recognizing the principle lately 
 advanced, ' that the common law of England is in 
 force under the government of the United States ;' 
 excepting from such opposition, such particular parts 
 of the common law as may have a sanction from the 
 Constitution, so far as they are necessarily compre- 
 hended in the technical phrases which express the 
 powers delegated to the government; and excepting, 
 also, such other parts thereof as may be adopted by 
 Congress, as necessary and proper in carrying into 
 execution the powers expressly delegated." See 1 
 Tucker's Blackstone, App. 433. 
 
 This protest was directed specially against the 
 doctrine that the Courts of the United States > had 
 jurisdiction to punish common law offences; but it 
 applied equally to the pretension that the lex parlia- 
 mentaria, with its code of undefined offences, had been 
 adopted by implication. It expressed, of course, the 
 sentiment of the people of Virginia, and it is not to 
 be supposed that they took a different attitude on this 
 question only twelve years before, when they voted 
 upon the adoption of the Constitution. But Virginia 
 was not the only exception which broke the line of 
 common consent to an implied adoption of lex parlia- 
 menti. Massachusetts and New Hampshire cannot be 
 supposed to have assented to such an adoption, when 
 they had already cut down its proportions by their 
 own constitutions. 
 
 It is submitted, then, that the common law cannot 
 be referred to, and cannot have any effect whatever 
 
— 116 — 
 
 in determining whether the power to punish contempts 
 is incident to the existence of the two houses of Con- 
 gress ; first, because on general principle, the written 
 instrument necessarily excluded the operation. of any 
 other law upon the institutions which it established, 
 except so far as it referred to and adopted that law by 
 the use of some express term ; and second, because 
 there is clear evidence that, as a matter of fact, some 
 of the authors of the Constitution acted upon an 
 understanding that the common law was not to have 
 any operation, except in cases of such express ref- 
 erence, {a) 
 
 (a) Mr. Duponceau has admirably described, in the Preface to his Dis- 
 sertation on the Jurisdiction of the Courts of the United States, p. viii, et 
 seq., the difference between the relations which the common law bore to 
 political institutions in England and the colonies, and those which it bore 
 to institutions established by the written Constitutions of the States. 
 
 " In England, the country from whence we have derived, not only our 
 system of jurisprudence, but most of our civil and political institutions, 
 there is a metaphysical being called common law, which originally was a 
 code of feudal customs, similar to the coutumes which, until lately, governed 
 the different provinces of the neighboring Kingdom of France, but which, 
 by gradual steps, and by force of circumstances has become incorporated and 
 in a manner identified not only with the national jurisprudence, but, under 
 the name of Constitution, with the political government of the country. The 
 filing's prerogative and the rights of the subject are alike defined and limited 
 by the common law. The various and often conflicting jurisdictions of the 
 different tribunals in which justice is administered are also said to be 
 derived from it, although in many instances, they are known to be founded 
 on gradual and successive assumptions of power ; but those having been 
 established and consolidated by time, are now become common law. This 
 6918 rationis is a part of every civil and political institution, and everything 
 connected with the government of the country is said to be a part of it. 
 Thus the law of nations, the law-merchant, the marine law, the Constitution, 
 and even the religion of the kingdom, are considered to be parts and parcels 
 of the common law. It pervades everything and everything is interwoven 
 with it. Its extent is unlimited, its bounds are unknown ; it varies with the 
 successions of ages, and takes its color from the spirit of the times, the learn- 
 ing of the age, and the temper and disposition of the judges. It has experi- 
 
116 
 
 But if these objections pould be removed, it is 
 submitted that another remains which must be fatal. 
 
 enCed great changes at diflf'erent periods, and is destined to experience 
 more. It is from its very nature, uncertain and fluctuating; while to vul- 
 gar eyes, it appears fixed and stationary. Under the Tudors and the first 
 Stewarts, forced loans, ward-ships, purveyance, monopolies, legislation by 
 royal proclamation, and even the Star Cliamber and High Commission 
 Courts, and slavery itself, under the name of villenage, were parts of the 
 common law. At the revolution it shook oiF these unworthy fetters, and 
 assumed the character of manly freedom for which it is now so ethinently 
 distinguished. 
 
 " Twelve Judges, who hold their offices during good behavior, are the 
 oracles of this mystical science. In a monarchy like England, which has 
 no written Constitution, but in which all the rights of the Sovereign, as well 
 as the privileges of the people, are to be deduced from the common law, 
 those Judges are an useful check against the encroachments of the Monarch 
 or his Ministers ; hence the common law and the judicial power are, in that 
 country, almost objects of idolatrous worship. While the United States 
 were colonies, they partook of this national feeling ; the grievances which 
 induced them to separate from the mother country were considered as vio- 
 lations of the common law, and, at the very moment when independence 
 was declared, the oommpn law was claimed by an unanimous voice as the 
 birthright of American citizens ; for it was then considered as synonymous to 
 the British Constitution, with which their civil rights and political liberties 
 were considered to be identified. In the discussion that arose between the 
 colonies and Great Britain, the Constitution or the common law, which was 
 the same thing, was appealed to in favor of the doctrines which the contend- 
 ing parties respectively maintained. It was, therefore, held by all in equal 
 veneration, and by all cherished as their most precious inheritance. 
 
 " The revolution has produced a different state of things in this country. 
 Our political institutions no longer depend on uncertain traditions, but on 
 the more solid foundation of express, written compacts. The common 
 law is only occasionally referred to for interpretation of passages of our 
 textual Constitutions and the Statutes made in aid of them, which have 
 been expressed in its well-known phraseology, but there ei^ds its political 
 empire. It is no longer to it that our constitutional authorities look for the 
 source of their delegated powers, which are only to be fouiid in the letter or 
 spirit of the instruments by which they have been granted. 
 
 " The common law, therefore, is to be considered in the United States, 
 in no other light than that of a system of jurisprudence, venerable indeed for 
 its antiquity ; valuable for the principles of freedom which it cherishes and 
 inculcates, and justly dear to us for the benefits that we have received from 
 it ; but still, in the happier state to which the revolution has raised us, it is 
 a system of jurisprudence, and nothing more." 
 
— 117 — 
 
 The proposition that this power is incident . to our 
 legislative assemblies, stands upon an assumption that 
 the founders of the Constitution had a common law, 
 which was common to them to the same' extent and in 
 the same manner with the Constitution itself; that is 
 to say, that the law to be referred to was the common 
 law of the authors of the Constitution. 
 
 Now it is submitted that no such common law 
 existed. A general common law, pervading all of the 
 States as one rule, while those States expressly de- 
 clared themselves, in their Articles of 'Confederation, 
 to be sovereign and independent, and therefore to 
 have independent systems of law, is not conceivable. 
 And certainly, common law in that sense would not 
 come into existence by force of the fact — if it had been 
 a fact — that the common law systems of the several 
 States were alike. 
 
 It was practicable, indeed, when the people of the 
 several States resolved to come into closer relations, 
 that they should establish such a body of law by their 
 Constitution ; but they omitted to do so, and it is the 
 settled doctrine that, to this day, no such common law 
 exists. In Wheaton vs. Peters, 8 Peters, 658, the 
 Supreme Court of the United States said : " It is clear 
 that there can be no common law of the United States. 
 The federal government is composed of twenty-four 
 sovereiga and independent States ; each of which may 
 have its local usages, customs and common law. 
 There is no principle which pervades the Union, 
 and has the authority of law, which is not embodied 
 in the Constitution or laws of the Union." See, also, 
 United States vs. Worrall, 2 Dallas, 393; United 
 States vs. Hudson, 7 Cranch, 32 ; United States vs. 
 
— 118 — 
 
 Coolidge, 1 Wheaton, 415 ; Pennsylvania vs. Wheel 
 ing Bridge, 13 Howard, 563 ; United States vs. Nei 
 Bedford Bridge, 1 Wood. & M., 435 ; United State. 
 vs. Lancaster, 2 McLean, 433 ; United States vs 
 Wilson, 2 Blatchf., 435. 
 
 The only remaining hypothesis is, that the authors 
 of the Constitution acted with reference to the com- 
 mon law of the several States, and that they must b( 
 supposed to have intended that the two Houses o 
 Congress should have whatever power those severa 
 unconnected bodies of law had declared to be inci- 
 dent to legislative assemblies. 
 
 Now, this implication assumes that the local lawi 
 of the States were coincident in this matter, and nc 
 such uniformity existed. The law on this subject, ir 
 Massachusetts and New Hampshire, differed fron 
 that of some of the other States and of England 
 Massachusetts, by her Constitution of 1780, and Ne^Ji 
 Hampshire, by her Constitution of 1784, hac 
 restricted the power of their legislative assemblies t( 
 punish contempts, to narrower limits than those pre- 
 scribed by the common law elsewhere, {a) Wha 
 
 (a) The Constitution of Massachusetts, adopted in 1780, contained th 
 following provisions : 
 
 "X. The House of Representatives shall be the judge of the returns 
 elections, and qualifications of its own members, as pointed out in the consti 
 tution; shall choose their own Speaker; appoint their own officers, am 
 settle the rules and orders of proceeding in their own House. They shal 
 have authority to punish, by imprisonment, every person, not a member, whi 
 shall be guilty of disrespect to the House, by any disorderly, or contemptuou 
 behavior, in its presence ; or who, in the town where the Oeneral Court is sittin 
 and during the time of its sitting, shall threaten harm to the body or estate of an 
 of its members, for anything said or done in the House ; or who shall assaui 
 or arrest, any witness, or other person, ordered to attend the House, in hi 
 way, in going or returning ; or who shall rescue any person arrested by th 
 oriier of the House. 
 
119 — 
 
 becomes, then, of the supposed reference to the con- 
 clusions of the local laws of the several States, when 
 this matter was regulated by the common law, in 
 some of the States, and by written Constitutions in 
 others ; and when those conclusions, as to what power 
 was necessary and incident to legislative assemblies, 
 
 "And no member of the House of Eepresentatives shall be arrested, or 
 held to bail, on mesne process, during his going unto, returning from, or his 
 attending the General assembly. 
 
 " XI. The Senate shall have the same powers in the like cases ; and the 
 Governor and Council shall have the same authority to punish in like eases; pro- 
 vided that no imprisonment on the warrant or order of the Governor, 
 Council, Senate, or House of Eepresentatives, for either of the above- 
 described offences, be for a term exceeding thirty days. 
 
 "And the Senate and House of Eepresentatives may try, and determine all 
 cases where their rights and privileges are concerned, and which, by the 
 Constitution, they have authority to try and determine, by a committee of 
 their own members, or in such other way as they may respectively think 
 best." 
 
 The provisions of the Constitution of New fiampshire, of 1784, relating 
 to this subject -were as follows; 
 
 " The House of Eepresentatives shall choose their own Speaker, appoint 
 their own officers, and settle the rules of proceedings in their own House. 
 They shall have authority to punish, by imprisonment, every person who 
 shall be guilty of disrespect to the Souse, in its presence, by disorderly or con- 
 temptuous behavior, or by threatening or ill-treating any of its members ; 
 or by obstructing its deliberations ; every person guilty of a breach of its 
 privileges in making arrests for debt, or by assaulting any member during 
 his attendance at any session ; in assaulting or disturbing any one of its offi- 
 cers in the execution of any order or procedure of the House ; in assaulting 
 any witness, or other person ordered to attend by, or during his attendance 
 of, the House ; or in rescuing any person arrested by order of the House, 
 knowing them to be sucli. The Senate, President and Council shall have 
 the same powers in like cases, provided, that no imprisonment by either, for 
 any offence, exceed ten days." 
 
 It is observable that the power to punish for contempt, specified in these 
 two Constitutions, was extended to the Executives of those States, and ■ that 
 the causes for which such punishment might be 'inflicted, as well as the 
 amount of the punishment, were much more limited than those allowed by 
 the common law. Duane could not have been punished for his newspaper 
 article under either of these provisions. 
 
— 120 — 
 
 v^ere not uniform ? The base on whicli that implica- 
 ion of a grant of power is founded never existed, and 
 he implication must fall. 
 
 Finally, if for want of uniformity, this implication 
 lannot be founded upon the local laws of the States 
 ixisting when the Constitution was framed and 
 idopted, it would be to little purpose to show that 
 his power had once been recognized by the common 
 aw in all the colonies. The question .is, what was 
 he common understanding at the time of the framing 
 )f the Constitution, not what it had been at some 
 )ther time. The example of the colonies is, therefore, 
 rrelevant, even if it could be shown that their rules, 
 )n this subject, were uniform. 
 
— 121 
 
 IV. 
 
 Having considered whether the Constitution contains 
 any affirmative implication of this power, we propose 
 next to show that it contains negative implications — 
 implications that it was not granted ; and,- further, 
 that it contains provisions which actually prohibit the 
 several houses of Congi-ess to assume it. , 
 
 It is plain — indeed the argument for the power 
 stands on this ground — that the framers of the Con- 
 stitution had carefully studied the privileges and 
 powers of the two houses of Parliament ; that they 
 were aware of the privileges touching arrests and 
 freedom of speech ; of the right of the Commons to 
 judge of the elections, returns, and qualifications of 
 their members ; to determine the rules of their pro- 
 ceedings ; to punish and even expel, their members ; 
 and punish persons who were not membejs, for 
 contempt or breach of their privileges. 
 
 On the other hand, they must have known that the 
 election of Speaker was still subject to the Crown's 
 approval ; that both Lords and Commons restricted 
 the publication of their proceedings, so that even the 
 votes of thpir menibers. might remain unknown; and 
 that both exercised the extraordinary power of 
 compelling the assistance of every branch of the civil 
 government in executing th^ir warrants and orders. 
 In short, they were familiar with parliamentary 
 privilege, and knew how it had been used. What 
 was their conduct under 'these circumstances, when 
 they set about framing a new form of government, 
 and what was its meaning ? 
 
 16 
 
— 122 — 
 
 Keeping these privileges and powers in yiew, and 
 plainly copying from them, they proceeded to set 
 down, in carefully limited terms, the privileges and 
 powers of their own legislative assemblies. They 
 provided that " senators and representatives * * shall 
 in all cases, except treason, felony, and breach of the 
 peace, be privileged from arrest during their atten- 
 dance at the sessions of their respective houses, and 
 in going to and returning from the same; and for any 
 speech or debate in either house, they shall not be 
 questioned in any other place;" that "the house of 
 representatives shall chuse their speaker and other 
 officers;" that "the senate shall chuse their other 
 officers [than the Vice President] and also a President 
 pro tempore, in the absence of the Vice President;" 
 that "each house shall be judge of the elections, 
 returns and qualifications of its own members;" that 
 "each house may determine the rules of its proceed- 
 ings, punish its members for disorderly behaviour, and, 
 with the concurrence of two thirds, expel a member;" 
 and that "each house shall keep a journal of its 
 proceedings, and from time to time publish the same, 
 excepting such part as may in their judgment require 
 secrecy." They further provided a means by which 
 the vote of each member might be known, by author- 
 izing a demand of the yeas and nays; and, finally, 
 they regulated the power of each house to make 
 separate adjournments. 
 
 When we compare these details with the provisions 
 of the lex parliamentaria and observe that some of 
 the latter were adopted in the very language of that 
 law, that some of them were restricted by new limits, 
 that one of them was displaced by a contrary rule. 
 
— 123 — 
 
 and that some are not mentioned at all, it is impossible 
 to doubt that the founders of the Constitution proposed 
 to themselves to select from the common law those 
 privileges and powers only, which should be suitable 
 to their own legislative assemblies; or that they 
 intentionally omitted, and intended to exclude, what 
 they did not set down. The number and variety of 
 . the provisions which they took pains to make, would 
 seem to be conclusive evidence that they intended to 
 dispose of the whole subject of privilege and power ; 
 and it is a familiar rule of construction, that whatever 
 is not contained in any document which undertakes to 
 dispose of a whole subject, is rejected. The Supreme 
 Court of the United States has even held, that any 
 provision of an old statue which is not embodied in a 
 new one which has this purpose, is repealed; although 
 it may not be inconsistent with the provisions of the 
 new act. Surely the same principle should apply, and 
 with even greater force, to an original omission. 
 
 On the other hand, it is not supposable that the 
 framers of the Constitution omitted to mention this 
 power, because they thought that, being a power ex 
 necessitate, it would take care of itself, without being 
 mentioned; for power to expel a member is equally of 
 that kind ; and they were careful to specify that. We 
 are not at liberty to presume that they acted on a 
 theory which they did not observe. Moreover, such 
 a supposition must assume that some, at least, of the 
 delegates — for example, those from Massachusetts — 
 were capable of trusting to implication, a matter which, 
 in framing their State Constitution, they had deemed 
 it necessary to provide for expressly.. 
 
 In Anderson vs. Dunn, Mr. Justice Johnson sought 
 
, — 124 — 
 
 to dispose of the objection that expressid unius exclusio 
 est alterius, by showing that an implication of consti- 
 tutional powers, in disregard of that maxim, was 
 familiar. He said: "There is an express grant of 
 power to punish in' one class of cases, and one only ; 
 and all the punishing power exercised by Congress in 
 any cases, except those which relate to piracy and 
 offences against the laws of nations, is derived from 
 implicaiion. Nor did the idea ever occur to any one, 
 that an express grant, in one class of cases, repelled 
 the assumption of the punishing power in any other." 
 We submit that the power of Congress to enact 
 laws for the punishment of other offences than those 
 specifically named, is not derived from implication. 
 The general power " to make all laws which shall be 
 necessary and proper for carrying into execution " 
 the powers vested in Congress itself, or in the whole 
 Government, or in any department or officer thereof, 
 is just as much an express grant of power which covers 
 crime, not specified, as the clause referred, to is an 
 express grant of power over the crimes therein speci- 
 . fied. Powers which come within the description or 
 operation of an express grant, stand themselves on 
 the footing of expressly granted powers, notwithstand- 
 ing they are not specified. If a law which provides 
 punishment for a certain act, is a law which is neces- 
 sary and proper for carrying into execution a certain 
 constitutional power, then the power to make that law 
 is expressly given. It is not implied, it is ascertained 
 by determining that the particular law is one of the 
 class described. This criticism is not new, nor unsup- 
 ported by authority. In the Legal Tender Cases, 12 
 Wallace, 550, Mr. Justice Strong said: "We are 
 
— 125 — 
 
 accustomed to speak, for mere convenience, of the 
 express and implied powers conferred upon Congress. 
 But, in fact, the auxiliary powers, those necessary 
 and appropriate to the exeqution of the other powers, 
 singly described, are as expressly given as the power 
 to declare war, or to establish uniform laws on the 
 subject of bankruptcy. They are not catalogued, no 
 list.of them is made, but they are grouped in the last 
 clause of Section 8, of the first article, and granted in 
 the same words in which all other powers are granted 
 to Congress." 
 
 It appears, then, that the examples referred to in 
 AndersorCs case, not being instances of implied 
 power at all, do not even tend to show that when some 
 powers have been granted expressly, others, which 
 were not expressed, either specifically or generally, 
 have been implied. But even if these examples had 
 been instances of implied power, they would not have 
 tended to prove that a power, not expressed, may yet 
 be implied, if it appears that the expressed powers 
 were intended to dispose of the whole subject of the 
 powers to be granted. There is no reasonable pretence, 
 (though such a pretence has been set up by too strict 
 constructionists,) that the laws specified in the Con- 
 stitution were intended to dispose of the whole subject 
 of criminal legislation ; while it is borne upon the 
 face of the enumeration of the powers and privileges 
 of Congress, that it was the intention to dispose of 
 the subject of powers and privileges. / 
 
 And it may be added, that the legal presuniption 
 founded upon this familiar rule, is supported by the 
 historical situation. The Constitution was regarded 
 by its authors as a new departure in government ; and 
 
— 126 — 
 
 it was established by populations which were exces- 
 sively jealous of the concessions they were about to 
 make. The amendments which they demanded, in the 
 very act of adopting it, such as the prohibition of an 
 established religion and of an oppressive quartering of 
 troops, showed a temper that would not risk even mis- 
 constructions which were almost impossible; but 
 meant that they should be quite impossible. Can it 
 be doubted that it was the prevailing intention of a 
 people who were moved by such a spirit, to state, either 
 in specific or general terms, and within the four cor- 
 ners of the written instrument, just what powers they 
 were willing to grant to each department of this Gov- 
 ernment ? Can it be supposed that they were willing 
 to leave to implication what it was so easy to say, and 
 what had been said in other constitutions ? The prin- 
 ciple laid down in Marbury v. Madison, 1 Cranch. 
 137, is almost a direct answer to such a question; for 
 it was stated, not merely by a judge who had studied 
 the Constitution, but by a man who personally knew 
 its authors, that " The powers of the legislature are 
 defined and limited ; and that those limits may not 
 be mistaken or forgotten, the Constitution is written. 
 To what purpose are powers limited, and to what pur- 
 pose is that limitation committed to writing, if these 
 limits may, at any time, be passed by those intended 
 to be restrained ?" In the spirit of this rule we may 
 ask : To what purpose were the independent powers 
 of the several branches of the legislature committed 
 to writing, if we may look beyond that writing, and 
 search for new powers in the undefined and disputed 
 common law of privilege ? 
 To these considerations history adds another, which 
 
— 127 — 
 
 bears directly upon the matter in hand. It was ex- 
 tremely improbable that the people of the American 
 States should be willing to entrust this extraordinary 
 and undefined power to their untried government. 
 They were as well aware of its abuse by the House of 
 Commons as of its existence, and they knew its nat- 
 ural tendency to extravagance. They knew that it 
 had been the doctrine of that house, that whatever it 
 claimed as a privilege became thereby a privilege. 
 The judicial decisions which broke down that high 
 pretension had not yet been made, and they had no , 
 certain ground for presuming that it would not be re- 
 peated here, if the law which permitted it should be 
 adopted. 
 
 So far from having already grown more moderate, 
 this theory was declared by the House of Commons 
 itself fifty years later. Lord Denman said, in Stock- 
 dale V. Hansard, 9 Adbl. & Ell. 108, (1839) : " If the 
 Attorney General was right in contending, as he did 
 more than once in express terms, that the House of 
 Commons, by claiming anything as its privilege, 
 thereby makes it a matter of privilege, and also that 
 its own decision upon its own claim is binding and 
 conclusive, then plainly this court cannot proceed in 
 any inquiry into the matter, and has Nothing to do but 
 declare the claim well founded because it was made. 
 This is the form in which I understand the committee 
 of a late House of Commons to have asserted the privi- 
 leges of both houses of parliament, and we are informed 
 that a large majority of that House adopted the asser- 
 tion." 
 
 But if the people of these States had no reason to 
 apprehend new pretensions of privilege, it was enough 
 
— 1?8 — 
 
 to know how far they had already heen carried. They 
 were aware, for example, that the House of Commons, 
 assuming to define what was a lihel, had, in times of 
 political excitement, punished as libels publications 
 which questioned its powers, and that one Parliament 
 punished such offences offered to another Parliament; 
 that, from time to time, throughout the century 
 preceding our Eevolution, such acts as entering upon 
 the estates of members, distraining their goods, lopping 
 their trees, killing their rabbits, or fishing in their 
 ponds had been punished as breaches of privilege. 
 It is immaterial that these were only instances of 
 usurpation and not of lex parliamentaria; for whether 
 regarded as within or beyond that law, they would 
 have the same effect in determining the disposition of 
 our people toward that law itself — and it is of their 
 disposition to import and adopt it, that we are speaking. 
 But, as a matter of fact, they, had no means of knowing 
 what pretensions were legal and what were illegal; for 
 Englishmen had actually been deterred from testing 
 them by appeals to the Courts of Justice. Such 
 appeals had themselves been treated as breaches of 
 privilege. In the language of Lord Denman, in the 
 great case already referred to, "None could have 
 commenced a suit of any kind for the purpose, without 
 incurring the displeasure of the offended house, 
 instantly enforced if it happened to be sitting, and 
 visiting all who had been concerned. During. the 
 session, it must be remembered that privilege is more 
 formidable than prerogative, which must avenge itself 
 by indictment or information, involving the tedious 
 process of the law; while privilege, with one voice, 
 accuses, condemns, and executes. And the order to 
 
— 129 — 
 
 'take him,' addressed to the sergeant-at-arms, may 
 condemn the offender to persecution and ruin." 
 
 It is impossible to imagine that these astonishing 
 results of a power which refused to he defined should 
 be unknown to intelligent persons in this country, or 
 that they had been forgotten. Some of the most 
 monstrous instances of its assertion" such as the noted 
 case of Admiral Grifiin's fishery, had occurred only a 
 few years before our own contest with Parliament began. 
 It could not fail to be fresh in the minds of all commun- 
 ities which had been subject to the power of that body, 
 that Parliament had been made almost odious, certainly 
 unpopular, among Englishmen themselves, by its Use 
 of privilege. Is it probable, then, that the people of 
 these States, smarting under their recollections of 
 wrongs, and submitting themselves only with hesitation 
 and jealousy to any new control, could have intended 
 silently to open the door, or rather to leave it ajar, for 
 the admission of a power so indefinite, so capable of 
 abuse, and known to have been abused and to have 
 become odious in its original home? Did they bestow 
 powers upon these untried legislative assemblies with 
 such tokens of confidence, that we must infer from 
 their very silence that they consented to be imprisoned 
 by them, in any case where these bodies might conceive 
 their dignity to have been assailed? Mr. Justice 
 Johnson said in Anderson's case, "that the exercise of 
 the powers given over their own members was of such 
 a delicate nature, that a constitutional provision became 
 necessary to communicate it. Constituted as that body 
 is, of the delegates of confederated States, some such 
 provision was necessary to guard against their mutual 
 jealousy; since every proceeding against a representa- 
 
 17 
 
— 130 — 
 
 tive would indirectly affect the honor or interests of 
 the State which sent him." This particular reason did 
 not apply to the private citizens of the States; but 
 were those communities less jealous of the extent to 
 which those citizens were to be subjected to the powers 
 of the new government? We submit that their ex- 
 perience and their known sentiments suggest an 
 extreme improbability that a power so undefined by 
 law and so prone to extravagance, would be granted ; 
 and that the implications of History are as strong as 
 the implications of the Constitution, that it was not 
 granted. 
 
 Finally we come to the proposition that the Con- 
 stitution contains provisions which actually forbid 
 either house of Congress to assume the exercise of 
 this power, as an original constitutional grant to it by 
 implication. 
 
 By virtue of the general clause already referred to, 
 the collective legislature has an express grant of 
 power to make all laws which are necessary and 
 proper for carrying into execution the powers and 
 functions oi every department and ofiicer of this govern- 
 ment, and among them the legislative power or func- 
 tion. For this purpose, it may not only provide 
 punishments for all acts which obstruct the power or 
 function in question, but may provide instrumentali- 
 ties for their infliction. As a matter of fact, this power 
 has, as we have already seen, been exercised for the 
 protection of the legislative function, and of the 
 effective working of the two Houses of Congress. 
 The Act of 24 January, 1857 (11 St., 155), which 
 provided for the punishment of recusant witnesses, 
 
— 131 — 
 
 summoned before either Souse, or before a Com- 
 mittee of either House, stood upon this ground alone. 
 Its intent was to protect, not merely the legislative 
 function, but the particular functions of each House ; 
 in other words, to afford precisely the kind of pro- 
 tection which is alleged to be the object and founda- 
 tion of the power to punish for contempt. Now, if 
 the collective legislature has control over this subject 
 at all, it has such control in every case, and with 
 regard to every form of obstruction, wher,e the 
 obstruction is offered by a person who is not a mem- 
 ber. In the cases of members, the Constitution has 
 vested in each House a power which is exclusive of 
 legislative control; but, with this exception, the col- 
 lective Congress has complete legislative control over 
 the whole subject of offences which obstruct the func- 
 tions or privileges of either of its branches. It may 
 determine what acts shall constitute an obstruction or 
 contempt, what penalties shall be inflicted upon the 
 offender, and whether any particular kind of injury 
 shall be punished at all. That this extent of power 
 is vested in the whole Congress by an eixpress grant 
 of the Constitution, seems to have been conceded in 
 Anderson vs. Dunn, although the learned justice who 
 delivered the opinion conceived that an attempt to 
 define the acts which should be punished, would be 
 absurd. 
 
 Does not this express grant of power to the^ whole 
 Congress make an end of the implication that the 
 Constitution has granted to each House, independently, 
 power over the same matter? If the Constitution 
 has granted this power to each House directly, it 
 must be an exclusive power, just as much as the power 
 
132 
 
 to judge of the elections, returns, and qualifications of 
 its own members ; to choose its own officers ; and to 
 determine its own rules of proceeding. And, surely, 
 it is not necessary to demonstrate that an exclusive 
 power in one House and a collective power in the 
 whole Congress, are irreconcilable ; or that, when 
 the Constitution has expressly granted such power to 
 one, we are not at liberty to imply that it has granted 
 ■ it to the other. 
 
 In the next place, this implication of a separate 
 power in each House to punish contempts is forbidden, 
 because the punishment of contempts was well under- 
 stood, when the Constitution was framed, to be an 
 exercise of judicial power ; and the whole judicial 
 power of the United States was disposed of by that 
 instrument, without giving this portion of it to the 
 several Houses of Congress. 
 
 What we mean by this proposition is, that it was 
 known that the power of the House of Commons, in 
 this matter, was a part of the judicial power of the 
 realm, just as the jurisdictions of the common law, the 
 Chancery, the Ecclesiastical, and the Admiralty 
 Courts, were parts thereof; and that the House of 
 Commons, in administering this portion of " the law 
 of the land," acted in the capacity of a court, in as full 
 a sense as those other tribunals were courts. We 
 propose to examine the proofs of this statement. 
 
 In the first place, the adjudication of punishment 
 for an offence is, in its very nature, a judicial act, a 
 judicial judgment ; and this is necessarily true, as well 
 of the offence called a contempt, as of other offences. 
 It was so regarded by the common law when the power 
 to punish contempts was exercised by the Courts; 
 
— 133 — 
 
 notwithstanding that proceeding has come to be spoken 
 of as one of self-preservation ; Griesley's case, 8 Coke, 
 38. In a word, it was a settled principle of the law 
 of the land, long before this power and jurisdiction 
 were vested in the House of Commons,' that punish- 
 ment of contempts by summary proceedings was an 
 exercise of the judicial power, in the same sense and 
 degree that punishment of other offences upon indict- 
 ment was of that nature ; and so clear was this prin- 
 ciple, that it came to be held that, when powe:r to 
 punish for contempt was given to a body of persons, 
 they were thereby erected into a judicial body. 
 Oroenvelt vs. Burwell, 1 Ld. Ray., 454 ; 1 Salk., 200. 
 Is there any ground for imagining that the law, in 
 granting to the Commons power to do the same act, 
 attributed a different character to the power itself? 
 The conclusion should be, on the contrary, that the 
 nature of the power defined the capacity of its posses- 
 sors, and erected them, to that extent, into a judicial 
 body. That the grant of this power to the House of 
 Commons was recognized to be a distribution of the 
 judicial power of the realm, is conclusively established 
 by the single fact that, from that time, all other tri- 
 bunals were incapable of such jurisdiction. The 
 jurisdiction of the Commons was necessarily regarded, 
 and therefore was in fact regarded, as that of a higher 
 court, and was not to be shared by the inferior courts. 
 This was essentially a distribution of the judicial 
 power of the realm ; and the authorities show that it 
 was held to be so in fact. 
 
 In the first place, the House of Commons itself 
 assumed to act as a court. Evidence of this is found 
 both in the style of its orders and in its express 
 
— 134 — 
 
 declarations. In 1586, when one White had arrested 
 a member, it was ordered "that the Sergeant should 
 warn White to be here to-morrOw, sitting the court." 
 1 Hatsell, 99. This language was used only forty- 
 three years after Ferrers' case; the first in which 
 power to try contempts was assumed. But they went 
 further, and claimed to be technically a court of 
 record. In 1592, when Thomas Fitzherbert, a mem- 
 ber, was in execution, the matter was brought before 
 the House by Sergeant Yelverton, and the question 
 was, whether Fitzherbert should have the privilege. 
 In the course of the debate it was resolved: "That 
 this House, being a court of record, would take no 
 notice of any matter of fact at all in the said case, but 
 only of matter of record." 1 Hatsell, 107. And in 
 the famous Apology of 1604, they said to James I: 
 " We avouch also that our House is a court of record, 
 and so ever esteemed." It seems they not only 
 claimed that character as against the King, but re- 
 stricted their own proceedings to the theory that they 
 were a court of record. 
 
 This solicitude to be recognized, not merely as a 
 court, but as technically a. court of record, shows how 
 distinctly the Commons themselves claimed that their 
 power was judicial in the sense already known to the 
 common law; and that, although limited, it was the 
 same in kind with the judicial power exercised at 
 Westminster Hall. It is impossible to mistake the 
 sense in which they called themselves a court, when 
 they were so careful to clothe themselves in the very 
 fashions of judicial power. We know that the phrase 
 was full of purpose. And they might ;pFell say that 
 they had at least exercised the powers of a court of 
 
— 135 — 
 
 record before James's time. In sentencing Arthur 
 Hall, in 1580, to a definite term of imprisonment and 
 to tlie payment of a fine to the Queen, they had 
 assumed precisely the functions of such a court. 
 Indeed, so deadly earnest were they about the nature 
 of their judicature, that they even attempted to ex- 
 ercise a general criminal jurisdiction. In 1621, when 
 one Floyde, a catholic barrister, exulted over the 
 mishaps of the Palatinate, they impeached him, as 
 they called it, before their own house, and sentenced 
 him to cruel punishments. In their debate they 
 insisted that they had judicial criminal jurisdiction as 
 much as the Lords, and could act alone. They gave 
 way, it is true, when the Lords protested and the King 
 asked them for precedents, and proceeded in the end 
 by formal impeachment ; but the very extravagance 
 of their pretensions shows what they meant by judicial 
 power. 
 
 But, however extravagant their pretensions may 
 have been, their pretension to some extent of judicial 
 power was universally acceptfed. The common-law 
 courts and writers recognized their power in the matter 
 of privilege to be judicial power in the exact sense to 
 which they were accustomed. 
 
 In 4 Inst. 23, Coke said: "Now order doth require 
 to treat of other matters of judicature in the lords' 
 house, and of matters of judicature in the House of 
 Commons. And it is to be known that the Lords in 
 their house have power of judicature, and the Com- 
 mons in their house have power of judicature, and 
 both houses together have power of judicature." He 
 then cites commitments for breach of privilege as 
 examples of. the judicature of the Commons. In other 
 
— 136 — 
 
 words, the jurisdiction of the Commons in the matter of 
 privilege, and the judicial jurisdiction of the High 
 Court of Parliament, which included both Houses, are 
 classed together and described by the same word, and 
 are thus alleged to be equally judicial power. 
 
 Sir Orlando Bridgeman, who was Chief Justice of 
 the Court of Common Pleas in Charles II's time, was 
 no friend of privilege, having been himself expelled 
 by, the Commons; but in the famous case of Benyon 
 vs. Evelyn, while denying the particular privilege in 
 question, he distinctly recognized that house as a court. 
 He said : " I should have been glad not to have had 
 occasion to have delivered my opinion on this point 
 for two reasons; first, because it is a tender thing for 
 an inferior court to judge of the privileges of a superior 
 court," etc. Hargrave's MS. p. 6; Bridgeman's Eep. 
 324. 
 
 In 1704 the cases of the Aylesbury — men renewed 
 with great heat the discussion of the capacity in which 
 the Commons acted in committing for breach of privi- 
 lege. It was clear enough that an action against a re- 
 turning officer, for wrongfully and maliciously rejecting 
 a vote, did not touch the privilege of the Commons to 
 judge of the election. itself; and nothing short of an in- 
 flexible rule could have prevented the courts from going , 
 behind the return to the writs of habeas corpus, and 
 finding that the plaintiffs were imprisoned without 
 having committed a contempt. But the rule was rigid 
 and prevailed. In Queen vs. Paty, 2 Lord Raymond, 
 1109, 3 Anne, Mr. Justice Gould said: "If this had 
 been a return of commitment by an inferior court, it 
 had been naught, because it did not set out a sufficient 
 cause of commitrpent; but this return b.eing a com- 
 
— 137 — 
 
 mitment by the House of Commons, which is superior 
 to this Court, it is not reversible for form." Mr. Justice 
 Powys was more explicit. He said: "The House of 
 Commons is a great court, and all things done by it 
 are to be intended to have been rite actce. * * The 
 second objection was, that the warrant was not under 
 seal, and 2 Ins., 52 is, that warrants of commitment 
 must be in writing, under hand and seal. But to this I 
 answer, that the House of Commons is a court, and so 
 my Lord Coke says in his 4 Ins., 23; and commitments 
 by a court need not be under hand and seal." It should 
 be observed that this reasoning assumes that the 
 House of Commons was a court in the most technical 
 sense. Mr. Justice Powell dealt more philosophically 
 with the niiatter, and explained that the Commons 
 were a court to administer a separate branch of law, 
 and were governed by the principles of that law. He 
 said: "There is a lex parliamenti ; for the common law 
 is not the only law in this Kingdom ; and the House 
 of Commons do not commit by the common law, but 
 by the law of Parliament. * * * The Commons have a 
 power of judicature, and so is 4 Ins., 23; 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. This Court may 
 judge of privilege, but not contrary to the judgment of 
 the House of Commons; which yet we must do in this 
 case if we discharge these persons from their irdprison- 
 ment; which is the only judgment the House of 
 Commons can give upon their determination that 
 these persons have been guilty of a breach of their 
 privileges. * * * The Court of Parliament is a superior 
 court to this court; and though the King's Bench have 
 
 18 
 
— 138 — 
 
 a power to prevent excesses in courts, yet they cannot 
 prevent excesses in . Parliament; because that is a 
 superior court to them." 
 
 In 1751, Alexander Murray, being committed by 
 the House of Commons for refusing to kneel at its bar, 
 sued out a writ of habeas corpus ; but the King's Bench 
 refused to discharge him. In Mex vs. Murray, 1 
 Wilson, 299, Mr. Justice Wright said: "The House of 
 Commons is undoubtedly 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 
 was, for if it did appear, we could not judge thereof. 
 * * * The House of Commons is superior to this court 
 in this particular." And Foster, J. said: "The law of 
 Parliament is 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; all courts of record, 
 even the lowest, may commit for contempt." 
 
 Twenty years later, the capacity in which the 
 House of Commons acted in punishing contempts was 
 stated still more emphatically in the famous case of 
 Brass Orosby, 3 Wilson, 188. Lord Chief Justice De 
 Grey said : " 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 Ins., .23 * * * ^^ 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. * * * When 
 the House of Commons adjudge anything to be a 
 contempt, or a breach of privilege, their adjudication 
 is a conviction, and their commitment, in consequence, 
 
— 139 — 
 
 is execution ; and no court can discharge, or bail, a 
 j)erson that is in execution by the judgment of any 
 other court. The House of Commons, therefore, hav- 
 ing 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 com- 
 petent jurisdiction ; in such a case this court is not a 
 court of appeals." And, in referring to Murray's case, 
 the learned Chief Justice said : "All the judges agreed 
 that he must be remanded, because he was committed 
 by a court having competent jurisdiction." In the 
 same case Gould, J., said : "They are the only judges 
 of their own privileges ; and that they may properly 
 be called judges, appears, in 4 Ins., 47, where my 
 Lord Coke says, an alien cannot be elected of the 
 Parliament, because such a person can hold no place 
 of judicature." Mr. Justice Blackstone was still 
 more pointed. He said : " The House of Commons 
 is a supreme court, and they are judges of their own 
 privileges and contempts, more especially with re- 
 spect 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 Souses of Parliament and the courts of West- 
 minster Hall, can have no control 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. * * * No 
 other court shall scan the judgment of a superior 
 
— 140 — 
 
 court, or the principal seat of justice; as I said before 
 it would occasion the utmost confusion if every cour 
 of this Hall should have power to examine the com 
 mitments of the other courts of the Hall for con 
 tempts ; so that the judgment and commitment of eacl 
 court, as to contempts, must be final and withou 
 control." 
 
 It is to be observed that, in all these- opinions, thi 
 matter in hand was disposed of on the ground that no 
 the slightest distinction could be made between th- 
 power exercised by the House of Commons and thi 
 power exercised by the courts of Westminster Hal] 
 Even on the most technical points the same rule wa 
 held to be applicable to both bodies, because bot] 
 were courts, administering, in an equal sense, judicia 
 power. 
 
 It is a singular fact that Mr. Justice Story, who wa 
 of the opinion that the power to punish contempts wa 
 incident to legislative assemblies, should have citei 
 Brass Orosby's Case, in order to show the conclusive 
 ness of a commitment for contempt by an ordinar; 
 court of justice. In JEk parte Kearney, 7 Wheatoi 
 38, having laid down the proposition that, " When 
 court commits ap.arty for a contempt, their adjudicatio: 
 is a conviction, and their commitment, in consequenc( 
 is execution," he added : "So the law was settled, upo 
 full deliberation, in the case of Brass Crosby, Lor 
 Mayor of London, 3 Wilson, 188. Indeed, in thj 
 case the same point was before the court as in thii 
 It was an application to the Court of Common Pleg 
 for an habeas corpus, to bring up the body of tl 
 Lord Mayor, who was committed for contempt by tl 
 House of Commons." The point under consideratio 
 
— 141 — 
 
 was, the conclusiveness of a commitment for contempt 
 by a court, and the learned judge assumed, that com- 
 mitment by the House of Commons was an example 
 of such commitment, and illustrated its conclusive- 
 ness. 
 
 It appears, then, that for two centuries before the 
 adoption of our Constitution, it had been understood' 
 that the House of Commons exercised its power to 
 punish contempts in the capacity of a court ; and it 
 appears by the same cases that it was understood to 
 exercise a distributive share of the judicial power of 
 the realm. When Mr. Justice Powell, delivering his 
 opinion in Paty's case, said : " There is a lex Parlia- 
 menti; for the common law is not the only law in this 
 kingdom; and the House of Commons do not commit 
 ■men by the common law, but by the law of Parlia- 
 ment," and added that the Commons had " power of 
 judicature * * * i^y the law of Parliament," he 
 meant to explain that there was a distribution of 
 judicial power, and that so much thereof as was of 
 " common law " had been given to the courts at 
 Westminster Hall, and that so much thereof as was 
 legis Parliamenti had been given to the Houses of 
 Parliament. This distribution of judicial power was 
 effected by the British Constitution, and the House 
 of Commons was held by that Constitution to be a 
 court having competent jurisdiction to administer 
 its share of the law. {a) It took this share to the 
 
 (a) In showing that the House of Commons was understood, when the 
 Constitution of the United States was adopted, to be a Court, and to act in 
 that capacity when it punished contempts, only decisions of a prior date 
 have been cited in the text. Decisions of a later date are authoritative, 
 however, to prove what the original theory was. Attention is, therefore 
 
— 142 — 
 
 exclusion of all other courts, just as the Admiralty 
 and Ecclesiastical and common law courts took their 
 peculiar shares; and the whole of their jurisdictions, 
 together, made up the judicial power of the realm. 
 
 With a full comprehension of this fact, the framers 
 of our written Constitution undertook to make their 
 distribution of judicial power. We will cite all of 
 the provisions which can be supposed to touch that 
 distribution. 
 
 called to some of them in this note. In the case of Burdett vs. Abbott, 14 
 East, 1 (1811), Lord Ellenborough used the following expressions: "Can 
 the High Court of Parliament, or either of the two Houses, of which it con- 
 sists, be deemed not to possess, intrinsically, the authority to punish sum- 
 marily for contempts, which is acknowledged to belong, and is daily 
 exercised as belonging, to every superior court of law, of less dignity, 
 undoubtedly, than itself? * * * Upon this subject I will only say that 
 if a commitment appeared to be for a contempt of the House of Commons, 
 generally, I would neither, in the case of that Court or of any other of the 
 superior courts, inquire further.'' In 1820, it was said in Hex vs. Hobhouse, 
 2 Chitty, 210 : " The power of commitment for contempt is incident to every 
 court of justice, and, more especially, it belongs to the High Court of Parlia- 
 ment." And, in 1847, Baron Parke, delivering the opinion of the Exchequer 
 Chamber, in Oossett vs. Howard, 10 Adol. and Ell., 455, said : " 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, in Eniick vs. Car- 
 rington, 10 How. St. Tr. 1047. And if we give credit to the courts of com- 
 mon law that they will not issue writs of attachment, except in due course 
 and in accordance with the power which the law gives them, and that, not- 
 withstanding the possible abuse of the liberty of the subject to which this 
 principle may give rise by enabling the 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 their course may also, possibly, lead to 
 the same consequence, the abuse of the liberty of the subject, by their 
 imprisoning any one at their mere will and pleasure ?" In all of these 
 cases the power of the House of Commons was sustained, not on the ground 
 that it was analogous to that of the courts, but on the ground that it was, 
 itself, a court. 
 
— 143 — 
 
 The third section of Article 1 provides: "The 
 Senate shall have the sole power to try all impeach- 
 ments. When sitting for that purpose, they shall be 
 on oath or affirmation. When the President of the 
 United States is tried, the Chief Justice shall preside ; 
 and no person shall be convicted without the con- 
 currence of two-thirds of the members present. 
 
 "Judgment in cases of impeachment shall not 
 extend further than to removal from office, and 
 disqualification to hold and enjoy any office of honor, 
 trust or profit under the United States : but the party 
 convicted shall nevertheless be liable and subject to 
 indictment, trial, judgment and punishment according 
 to law." 
 
 The fourth section of Article 2 provides: "The 
 President, Vice-President and all civil officers of the 
 United States, shall be removed from office on im- 
 peachment for, and conviction of, treason, bribery, or 
 other high crimes and misdemeanors." 
 
 The fifth section of Article 1 provides: "Each house 
 shall be the judge of the elections, returns and quali- 
 fications of its own members, and a raajority of each 
 shall constitute a quorum to do business; but a smaller 
 number may adjourn from day to day, and may be 
 authorized to compel the attendance of absent members, 
 in such manner and under such penalties as each house 
 may provide. 
 
 "Each house may * * punish its members for disor- 
 derly behavior, and, with the concurrence of two- 
 thirds, expel a member." 
 
 The ninth section of Article 1 provides: "No bill 
 of attainder * * shall be passed." 
 
 Article 3 provides: "The judicial power of the 
 
— 144 — 
 
 United States shall be vested in one Supreme Court, 
 and in such inferior courts as the Congress may from 
 time to time ordain and establish. The Judges, both oi 
 the supreme and inferior courts, shall hold their offices 
 during good behavior, and shall, at stated times, receive 
 for their services a compensation which shall not be 
 diminished during their continuance in office. 
 
 "The judicial power shall extend to all cases, in law 
 and equity, arising under this Constitution, the laws 
 of the United States, and treaties made, or which shall 
 be made, under their authority; to all cases affecting 
 ambassadors, other public ministers and consuls; to all 
 cases of admiralty and maritime jurisdiction; to con- 
 troversies to which the United States shall be a party ; 
 to controversies between two or more States; between 
 a State and citizens of another State ; between citizens 
 of different States ; between citizens of the same State 
 claiming lands under grants of different States, and 
 between a State, or the citizens thereof, and foreign 
 States, citizens or subjects. 
 
 "In all cases affecting ambassadors, other public 
 ministers and consuls, and those in which a State shall 
 be a party, the Supreme Court shall have original 
 jurisdiction. In all the other cases before mentioned 
 the Supreme Court shall have appellate jurisdiction 
 both as to law and fact, with such exceptions, and 
 under such regulations as the Congress shall make. 
 
 "The trial of all crimes, except in cases of impeach- 
 ment, shall be by jury; and such trial shall be held ir 
 the State where the said crimes shall have beer 
 committed; but when not committed within any State 
 the trial shall be at such place or places, as the Con- 
 gress may by law have directed." 
 
— 145 — 
 
 The Amendments of the Constitution, relating to the 
 exercise of judicial power, do not furnish any furher 
 illustration of its distribution • but it is proper that they 
 should be cited, in order that every provision touch- 
 ing that power may be presented. They are as follows : 
 
 " Article 4. The right of the people to be secure 
 in their persons, houses, papers and effects against 
 unreasonable searches and seizures, shall not be vio- 
 lated, and no warrant shall issue, but upon probable 
 cause, supported by oath or affirmation, and particu- 
 larly describing, the place to be searched, and the 
 persons or things to be seized." 
 
 " Article '5, No person shall be held to answer for 
 a capital, or otherwise infamous' crime, unless on a 
 presentment or indictment of a grand jury, except in 
 cases arising in the land or naval forces, or in the 
 militia, when in actual service in time of war, or 
 public danger; nor shall any person be subject for 
 the same offence to be twice put in jeopardy of life 
 or limb; nor shall be compelled, in any criminal 
 case, to be a witness against himself, nor be deprived 
 of life, liberty, or property, without due process of 
 law ; nor shall private property be taken for public 
 use, without just compensation. 
 
 "Article 6. In all criminal prosecutions, the accused 
 shall enjoy the right to a speedy and public trial ; by 
 an impartial jury of the State and district wherein the 
 crime shall have been committed, which district shall 
 have been previously ascertained by law, and to be 
 informed of the nature and cause of the accusation ; to 
 be confronted with the witnesses against him ; to have 
 compulsory process for obtaining witnesses in his favor, 
 and to have the assistance of counsel for his defense." 
 
 19 
 
— 146 — 
 
 " Article 7. In suits at common law, where the value 
 in controversy shall exceed twenty dollars, the right of 
 trial by jury shall be preserved, and no fact tried by a 
 jury shall be otherwise re-examined in any court of the 
 United States, than according to the rules. of the com- 
 mon law. 
 
 "Article is. Excessive bail shall not be required, 
 nor excessiver fines imposed, nor cruel and unusual 
 punishment inflicted." 
 
 These provisions of the original Constitution, and 
 of the amendments made contemporaneously, suggest 
 two 'considerations. First. It is impossible to read 
 them without arriving at the conclusion that they 
 contain all that the founders of this Government had 
 to say, either of power that was technically judicial, 
 or of power that was judicial in its nature and opera- 
 tion, and that they were intended to exhaust that 
 subject. They vest certain judicial powers in the 
 several branches of Congress, and certain other 
 judicial powers in the courts of the United States. 
 The provisions relating to the latter were manifestly 
 intended to" be exhaustive, and we have a right to 
 suppose that the same intent prevailed in both cases. 
 It follpws that, on a principle which has already been 
 explained, these elaborate affirmative provisions ex- . 
 elude an implication of any other judicial power, 
 whether technically or effectually judicial. In other 
 words, the power claimed for the two Houses of Con- 
 gress, being judicial power, and not being mentioned 
 in this exhaustive statement of the judicial powers dis- 
 tributed among the departments of the Government, 
 must be denied on the principle of mere exclusion. 
 The second consideration is, ,that a direct grant of this 
 
— 147 — 
 
 share of judicial power to the several branches of 
 Congress cannot exist by implication, because the Con- 
 stitution has otherwise disposed of that very power, by- 
 granting to ailother department a power which extends 
 to and covers it. By authorizing the whole Congress 
 to make laws providing punishment for contempts of- 
 fered to eith'Cr of its branches, and by extending "the 
 judicial power of the United States " to all cases arising 
 under such laws, the Constitution has authorized 
 punishment of such offences by the courts of the United 
 States. Now, inasmuch as a direct grant to each sepa- 
 rate House, of jurisdiction over this class of offences, 
 must be a grant of exclusive power, just as a grant of 
 power to punish its own members for disorderly con- 
 duct is exclusive, such exclusive power and a power 
 of the courts cannot co-exist. As the latter has been 
 provided for expressly, the former inconsistent power 
 cannot be implied. It is simply impossible that the 
 Constitution should have intended to imply a power 
 which was inconsistent with its own express provisions. 
 In short, the power to punish contempts of either 
 House of Congress has been placed by the Constitu- 
 tion, and there is no room for another claimant. They 
 must be punished through- the intervention of the 
 "judicial power of the United States," vested in the 
 Courts of the United States. 
 
 If this conclusion be well founded, another follows : 
 no particular act can be punished as an offence 
 against the authority or privileges of either House of 
 Congress, until that act shall have been made an 
 offence by statute. It has been settled that this Gov- 
 ernment has no unwritten criminal code, to which 
 resort can be had as a source of jurisdiction. The 
 
— 148 — 
 
 courts of the United States must find the crimes which 
 they undertake to punish, designated in the written 
 law. United States vs. Hudson, 7 Cranch, 32 ; United 
 States vs. Coolidge, 1 Wheaton, 415 ; Pennsylvania vs. 
 Wheeling Bridge, 13 Howard, 519 ; United States vs. 
 Libby, 1 Wood. & M., 222 ; United States vs. New 
 Bedford Bridge, lb. 401.; United States vs. Lancaster, 
 2 McLean, 431. The only offences against Congress 
 which have thus far been defined by statute, are brib- 
 ery of members, Act 20 February, 1853, 10 Stat., 
 171 ; and the refusal of witnesses to testify when sum- 
 moned before either House or before' a committee of 
 either House ; Act 24 January, 1857, 11 Stat., 155. 
 
 In conclusion, we revert to the emphatic declaration 
 of Mr. Justice Johnston, in Anderson vs. Dunn: that 
 this power, " if it exists, must be derived from impli- 
 cation " from the Constitution. It must stand as a 
 power vested by that instrument directly in each 
 House of Congress, on the same footing with its exclu- 
 sive power to determine its own rules of proceedings, 
 or it cannot stand at all. It is claimed that no such 
 power has been granted. First. Because the Constitu- 
 tion contains, no affirmative implication that it has 
 been granted. Second. Because the Constitution 
 contains implications that it has not been granted;- 
 and. Third. Because the Constitution has not left this 
 power dependent on implication, but has actually dis- 
 posed of it in a manner which absolutely prohibits 
 either House of Congress to exercise it ; having, by its 
 express provisions, made punishment of contempts 
 dependent wholly upon legislation, and applicable 
 solely by " the judicial power of the United States." 
 
 If the conclusions reached in this inquiry be correct, 
 
— 149 — 
 
 it does not follow that the privileges and dignity of 
 the two houses of Congress should lose one jot of the 
 protection which has hitherto surrounded them. That 
 protection should^ if possible, be even more effective 
 than it has been; and the Constitution has furnished 
 the ~ means of making it so. ' The substitution of 
 tribunals known to be unaffected by personal resent- 
 ment, for a tribunal known to be affected by a sense of 
 injured dignity and by party spirit; and the infliction 
 of solemn punishment, defined and sanctioned by laws, 
 in the stead of punishment prescribed by a law which 
 is hot known, and which has authority only by 
 implication, would insure a common belief that the 
 offence was grave, and that the punishment was just. 
 A judicial conviction and sentence would accomplish 
 what a commitment by order of .either House has 
 hitherto failed to accomplish ; they would render the 
 offence discreditable.. And if it should be objected 
 that judicial proceedings would, by reason of their 
 slowness, impair the efficiency and defeat the objects 
 of such punishment, it should be remembered that 
 prompter methods maiy be contrived, without violating 
 any provision of the Constitution. But even if this 
 defect should prove to be, to some extent, permanent, 
 it is still true that methods, of administering criminal 
 justice which are universally knowli to. be authorized 
 and trustworthy, are more useful than any method 
 can be which is manifestly discordant with all our 
 other constitutional habits, and which never fails to 
 excite some apprehension touching its legality and 
 fairness. 
 
— 150 
 
 APPENDIX. 
 
 Anderson ■ws. Dunn. 
 6 Wheaton, 204. 
 
 Ekeoe to the Circuit Court 'of the District of. 
 Columbia. 
 
 This was an action of trespass, brought in the 
 court below, by the plaintiflf in error' against the 
 defendant in error, for an assault and battery and 
 false imprisonment; to which the defendant pleaded, 
 the general issue, and a special plea of justification. 
 The plaintiflf demurred generally to the .special plea, 
 which was adjudged good, and' the demurrer over- 
 ruled ; and judgment upon such demurrer was entered 
 for the defendant, and a writ of error brought by the 
 plaintiflf. The question arising upon the demurrer 
 will be best explained by giving the defendant's plea 
 at large, as pleaded and adjudged good upon general 
 demurrer in the Circuit Court, namely : , 
 
 And the said Thomas, by the leave of the court 
 here first had, further defends the force and injury, 
 when, etc. And as to the coming with force and arms, 
 or whatsoever is against the peace ; aiid also as to the 
 assaulting, beating, bruising, battering, and ill-treat- 
 ijig of the said John, in manner and form as. the said 
 John, in his said declaration, hath above supposed to 
 be done, the said Thomas saith that he is not guilty 
 thereof; and of this he, as before, puts himself upon 
 
— 151 — 
 
 the country. And as to the imprisonment of the said 
 John, and the keeping and detaining him in con- 
 finement, at the time in the said declaration mentioned, 
 to wit, on the eighth day of January, in the year one 
 thousand eight hundred and eighteen, and for the 
 space of two months, in the said declaration mentioned, 
 the said Thomas saith that the said John ought not 
 to have or maintain his action aforesaid against him, 
 ' because he saith that long before and at the said time 
 when, etc., in the introduction of this plea mentioned, 
 and during all the time in said declaration mentioned, 
 a Congress of the United States was holden at Wash- 
 ington, in the- county of Washington, and District of 
 Columbia aforesaid, and was then and there, and 
 during all the time aforesaid, assembled and sitting ; 
 and that long before and at the time when, etc., in 
 the introduction of this plea mentioned, and during 
 all the time in the said declaration mentioned, he, the 
 said Thomas, was, and yet is, Sergeant-at-arms of the 
 House of Representatives, (then and there being one 
 of the Houses whereof the said Congress of the United 
 States consisted,) and by virtue of his said office, "and 
 by the tenor and effect of the standing rules and orders 
 ordained and established by the said House, for deter- 
 mining of the rules of its proceedings, and by the 
 force and effect of the laws and customs of the said 
 House, and of the said Congress, was then and there, 
 and during all the time aforesaid, and yet is duly 
 authorized and required, amongst other things, to 
 execute the commands of the said House, from time 
 to time, together with all such process issued by 
 authority thereof, as shall be directed to him by the 
 Speaker of the said House ; and that long before, and 
 
— 152 — 
 
 at the time when, etc., in the introduction of this plea 
 mentioned, and during all the time in the decliaration 
 mentioned, one Henry Clay was, and yet is, the 
 Speaker of the said House of Representatives, and by 
 virtue of his said office, and Ipj the tenor and effect of 
 such standing rules and orders as aforesaid, and by 
 the force and effect of such laws and customs as afore- 
 said, then and there, and during all the time aforesaid, 
 was, and yet is, amongst other things, duly author- 
 ized and required to subscribe with his proper hand, 
 and to seal with his seal, all writs, warrants and sub- 
 poenas issued by the order of the said House ; and ■ 
 that long before and .at the time when, etc., in the 
 introduction of this plea mentioned, . and during all 
 the time in the said declaration mentioned, one 
 Thomas Dougherty was, and yet is, the clerk of the' 
 said House of Representatives ; . and by virtue of his 
 said office, and by the tenor and effect of such stand- 
 ing rules and orders as aforesaid, and by the force and 
 effect of such laws and customs as aforesaid, then and 
 there, and during all the time aforesaid, was, and yet is, 
 amongst other things, duly authorized and required to 
 attest and subscribe with his proper hand, all such writs, 
 warrants and subpoenas issued by order of the said 
 House; and that long before, and at the time when,.etc., 
 in the introduction of this plea mentioned, and during 
 all the time . in the said declaration mentioned, and 
 ever since, it was, and yet is, amongst other things, 
 ordained, established and practiced, by and under 
 such standing rules and orders as aforesaid, and. such 
 laws and customs as aforesaid, that all writs, warrants, 
 subpoenas, and other process issued by order of the 
 said House, shall be under the hand and. seal of the 
 
— 153 — 
 
 said Speaker of the said House, and attested by the 
 said clerk of the said House ; and, so being under the 
 hand and seal of the said Speaker, and attested by the 
 said clerk, as aforesaid, shall be executed pursuant to 
 the tenor and effect of the same, by the said Sergeant- 
 at-arms ; and the said Thomas, the defendant, further 
 saith that the said Henry Clay, so being such Speaker 
 of the said House of Representatives as aforesaid, and 
 the said Thomas Dougherty, so being such clerk of 
 the same House as aforesaid, and he the said defen- 
 dant, so being such Sergeant-at-arms of the same 
 House as aforesaid, and the said Congress so being, 
 assembled and sitting as aforesaid, heretofore and 
 before the said time when, etc., in the introduction of 
 this plea mentioned, to wit, on the seventh day of 
 January, in the year aforesaid, at Washington afore- 
 said, in the pounty and district aforesaid, it was, in 
 and by the said House, for good and sufficient cause 
 to the same appearing, resolved and ordered, pursuant 
 to the tenor and effect of such standing rules and 
 orders so ordained and established as aforesaid, and 
 according to the force and effect of such laws and 
 customs as aforesaid, that the said John had been guilty 
 of a breach of the privileges of the said House, and of 
 a high contempt of the dignity and authority of the 
 same ; wherefore, it was then and there, in and by the 
 said House, further resolved and ordered, in the like 
 pursuance of such standing rules and orders as afore- 
 said, and of such laws and customs as aforesaid, that 
 the said Speaker should forthwith issue his warrant, 
 directed to the Sergeant-at-arms, commanding him to 
 take into custody the body of the said John, wherever 
 to be found, and the same forthwith to have before the 
 
 20 
 
— 154 — 
 
 said Souse, at the bar thereof, then and there to answer 
 to the said charge, etc., as by the journal, record and 
 the proceedings of the said resolutions and order in 
 the said House remaining, reference being thereto had, 
 will more fully appear. Whereupon, the said Henry 
 Clay, so being such Speaker as aforesaid, in pursuance 
 of such standing rules and orders as aforesaid, and 
 according to such laws and customs as aforesaid, did, 
 for the execution of the resolution and order aforesaid, 
 afterwards and before the time when, etc., in the 
 introduction of this plea mentioned, to wit, on the 
 seventh day of January, in the year aforesaid, at 
 Washington aforesaid, in the county aforesaid, as such 
 Speaker as aforesaid, duly make and issue his certain 
 warrant, under his hand and seal, duly directed to the 
 said Thomas, the defendant, as such Sergeant-at-arms, 
 as aforesaid, (to whom, so being such Sergeant-at- 
 arms as aforesaid, the execution of that warrant then 
 and there belonged,) and by the said Thomas Dough- 
 erty, so being such clerk as aforesaid ; in and by said 
 warrant, reciting that the said House of Representa- 
 tives had, that day, resolved and adjudged that the said 
 John Anderson had been guilty of a breach of the privi- 
 leges of the said House, and of a high contempt of its 
 di'gnity and authority ; and that the said House had 
 thereupon ordered the Speaker to issue his warrant 
 directed to the said Sergeant-at-arms, commanding 
 him, the said Sergeant, to take into custody the body 
 of the said John Anderson, wherever to be found, 
 and- the same forthwith to have before the said House, 
 at the bar thereof, then and there to answer to the said 
 charge; therefore, it was required that the said 
 Thomas, the defendant, as such Sergeant a;s aforesaid, 
 
— 155 — 
 
 should take into his custody the body of the said John 
 Anderson, and then forthwith to bring him before the 
 said House at the bar thereof, then and there to answer 
 to the charge aforesaid, and to be dealt with by the said 
 House, according to the Constitution and laws of the 
 United States; and the said Henry Clay, so being 
 such Speaker as aforesaid, then and there, and before 
 the said time when, etc., in the introduction of this 
 plea mentioned, delivered the said warrant to the said 
 Thomas, so being such Sergeant as aforesaid, to be 
 executed in due form of law. By virtue, and in exe- 
 cution of which said warrant, the said Thomas, as such 
 Sergeant ^s aforesaid, afterwards, to wit, at the same 
 time when, etc., in the introduction of this plea men- 
 tioned, at Washington aforesaid, in order to arrest the 
 said John, and convey him in custody to the bar of 
 the said House, to answer to the charge aforesaid, and 
 to be dealt with by the said House according to the 
 Constitution and laws of the United Sta;tes, in obe- 
 dience to the resolutions and order aforesaid, and to 
 the tenor and effect of the said warrant, so issued as 
 aforesaid, went to the said John, and then and there 
 gently laid his hands on the said John to arrest 
 him, and did then and there arrest him by his body, 
 and take him into custody, and did then forthwith 
 convey him to the bar of the said House, as it was law- 
 ful for the said Thomas to do for the cause aforesaid ; 
 and thereupon such proceedings were had, in and by 
 the said House, that the said John was then and there 
 forthwith duly examined, and heard in his defense, be- 
 fore the said House, at the bar thereof, touching the 
 matter of the said charge; and that such examination 
 was in and by the said House, and by the resolutions 
 
— 156 — 
 
 and orders of the same, duly adjourned and continued 
 from day to day, from the time when, etc., in the intro- 
 duction of this plea mentioned, until the sixteenth day 
 of January, in the year aforesaid ; which said examina- 
 tions were then so adjourned and continued, as afore- 
 said from necessity, in order to go through and con- 
 clude the examination and defence of the said John, 
 touching the matter of the said charge; before the said 
 House ; neither the said examination, nor the said de- 
 fense having been finished or concluded before the day 
 last aforesaid ; during all which time, to wit, from the 
 said time when, etc., in the introduction of this plea 
 mentioned, until the day last aforesaid, it was, in and 
 by the said House, duly resolved, and ordered, from 
 day to day, as the said examination was adjourned 
 and continued as aforesaid, that the said John should 
 be remanded, kept, and detained in the custody of the 
 said Thomas, as such Sergeant aforesaid, by virtue and 
 in execution of the said warrant, in order to have such 
 his examinations and defense finished and concluded 
 in due form ; and the said Thomas, as such Sergeant 
 as aforesaid, afterwards, to wit, at and from the said 
 time when, etc., in the introduction of this plea men- 
 tioned, until the said sixteenth day of January, in the 
 year aforesaid, did, in pursuance of the last-mentioned 
 resolutions and orders of said House, and by virtue, 
 and in execution of the said warrant, keep and detain 
 the said John in custody as aforesaid, and him did bring 
 and have, from day to day, during the said time, 
 before the said House, at the bar thereof, in order to 
 undergo such examinations as aforesaid, and to be 
 heard in his defense aforesaid, touching the matter of 
 the said charge, to wit, at Washington aforesaid, in 
 
— 157 — 
 
 the county aforesaid, as it was also lawful for him, the 
 said Thomas, to do for the cause aforesaid ; and there- 
 upon afterwards, to wit, on the said last-mentioned 
 sixteenth day of January, in the year aforesaid, such fur- 
 ther proceedings were had in and by the said House 
 that it was then and there finally resolved and adjudged 
 in and by the said House, that the said John was 
 guilty and convicted of the charge aforesaid, in the 
 form aforesaid ; and that he be forthwith brought to 
 the bar of the said House, and there reprimanded by 
 the said Speaker, for the outrage by the said John 
 committed, and then that he be forthwith discharged 
 from the custody of the said Sergeant-at-arms ; and 
 thereupon the said John was then and there, in pur- 
 suance of the last-mentioned resolutions, order and 
 judgment, forthwith reprimanded by the said Speaker, 
 and then forthwith discharged from the arrest and 
 custody aforesaid; as by the journals, record and 
 proceedings of the said resolutions, orders, and judg- 
 ment in the said House remaining, reference being 
 thereto had will more fully appear; which are the 
 same several supposed trespasses in the introduction 
 of this plea mentioned, and whereof the said John 
 hath, above in his said declaration, complained 
 against the said Thomas, and not other or differeiit ; 
 with this, that the said Thomas doth aver that the 
 said John, the now plaintiff, and the said John 
 Anderson, in the said resolutions, orders, warrants, 
 and judgment respectively mentioned, was, and is, one 
 and the same person ; and that the said several times 
 in this plea mentioned, and during all the time 
 therein mentioned, the said Congress of the United 
 States was assembled and sitting, to wit, at Washing- 
 
— 158 — 
 
 ton aforesaid, in the county aforesaid ; and this the 
 said Thomas is ready to verify ; wherefore he prays 
 judgment, if the said John ought to have or main- 
 tain his aforesaid action against him, etc. 
 
 Johnson, J., delivered the opinion of the court. 
 
 Notwithstanding the range which has been taken 
 by the plaintiff's counsel, in the discussion of this 
 cause, the merits of it really lie in a very limited' 
 compass. The pleadings have narrowed them down 
 to the simple inquiry, whether the House of Repre- 
 sentatives can take cognizance of contempts committed 
 against themselves, under any circumstances? The 
 duress complained of was sustained under a warrant 
 issued to compel the party's appearance, not for the 
 actual infliction of punishment for an offense committed. 
 Yet it cannot be denied, that the power to institute a 
 prosecution must be dependent upon the power to pun- 
 ish. If the House of Representative possessed no au- 
 thority to punish for contempt, the initiating process 
 issued in the assertion of that authority must have been 
 illegal; there was a want of jurisdiction to justify it. 
 
 It is certainly true, that there is no power given by 
 the Constitution to either House to punish for con- 
 tempts, except when committed by their own members. 
 Nor does the judicial or criminal power given to the 
 United States, in any part, expressly extend to the 
 infliction of punishment for contempt of either house, 
 or any one coordinate branch of the government. 
 Shall we, therefore, decide that no such power 
 exists? (a) 
 
 (o) It is implied in this passage that the Constitution has omitted to 
 extend the judicial power of the United States to the puni'Shment of con- 
 tempts of Congress, just as much as it has omitted to extend the power of 
 the several houses to that subject; in other words, that they stand on the 
 
— 159 — 
 
 It is true that sucli a power, if it exists, must be 
 derived from implication, and the genius and spirit of 
 our institutions are hostile to the exercise of implied 
 powers. Had the faculties of man been competent to 
 the framing of a system of government which would 
 have left nothing to implication, it cannot be doubted 
 that the effort would have been made by |he framers 
 of the Constitution. But what is the fact? There is 
 not in the whole of that admirable instrument, a 
 grant of powers which does not draw after it others, 
 not expressed, but vital to their exercise; not substan- 
 tive and independent, in deed, but auxiliary and 
 subordinate. 
 
 The idea is Utopian, that government can exist 
 without leaving the exercise of discretion somewhere. 
 Public security against the abuse of such discretion 
 must rest on responsibility, and stated appeals to 
 public approbation. Where all power is derived from 
 the people, and public functionaries, at short intervals, 
 deposit it at the feet of the people, to be resumed again 
 only at their will, individual fears may be alarmed by 
 the monsters of imagination, but individual liberty 
 can be in little danger. 
 
 No one is so visionary as to dispute the assertion, 
 
 same footing as to any express provision which enables their power to reach 
 the subject. Manifestly this is an error. The Constitution does not specify 
 contempts of Congress, as a matter to which the judicial power extends ; but 
 it does expressly extend that power to the punishment of any act which 
 Congress may constitutionally declare to be an offense. It is on the ground 
 that it does so extend, that all existing crimes against the United States 
 are punishable by the courts of the United States ; and contempts of Congress 
 are provided for in precisely the same manner with the whole body of 
 crimes. There is therefore the broadest difference between the positions of 
 the courts and of the two houses of Congress. The Constitution has expressly 
 extended the power of the former to this subject, and is silent as to the latter. 
 
— 160 — 
 
 that the sole end and aim of all our institutions is the 
 safety and happiness of the citizen. But the relation 
 between the action and the end, is not always so direct 
 and palpable as to strike the eye of every observer. 
 The science of government is the most abstruse of all 
 sciences; if, indeed, that can be called a science which 
 has but few fixed principles, and practically consists 
 in little more than the exercise of a sound discretion, 
 applied to the exigencies of the state as they arise. 
 It is the science of experiment. 
 
 But if there is one maxim which necessarily rides 
 over all others, in the practical application of govern- 
 ment, it is, that the public functionaries must be left 
 at liberty to exercise the powers which the people have 
 intrusted to them. The interests and dignity of those 
 who created them require ^he exertion of the powers 
 indispensable to the attainment of the ends of their 
 creation. Nor is a casual conflict with the rights of 
 particular individuals any reason to be urged against 
 the exercise of such powers. The wretch beneath the 
 gallows may repine at the fate which awaits him, and 
 yet it is no less certain that the laws under which he 
 suffers were made for his security. The unreasonable 
 murmurs of individuals against the restraints of 
 society, have a direct tendency to produce that worst 
 of all despotisms, which makes every individual the 
 tyrant over his neighbor's rights. 
 
 That "the safety of the people is the supreme law," 
 not only comports with, but is indispensable to, the 
 exercise of those powers in their pubic functionaries, 
 without which that safety cannot be guarded. On this 
 principle it is, that courts of justice are universally ac- 
 knowledged to be vested, by their yery creation, with 
 
— 161 — 
 
 power to impose silence, respect, and decorum, in their 
 presence, and submission to their lawful mandates, 
 and, as a corollary to this proposition, to preserve 
 themselves and their officers from the approach and 
 insults of pollution. 
 
 It is true, that the courts of justice of the United 
 States are vested, by express statute provision, with 
 power to fine and imprison for contempts ; but it does 
 not follow, from this circumstance, that they would not 
 have exercised that power without the aid of the 
 statute, or not in cases, if such should occur, to which 
 such statute provision may not extend; on the contrary, 
 it is a legislative assertion of this right, as incident to 
 a grant of judicial power, and can only be considered 
 either as an instance of abundant caution, or a legisla- 
 tive declaration, that thg power of punishing for 
 contempt shall, not extend beyond its known and 
 acknowledged limits of fine and imprisonment. 
 
 But it is contended, that if this power in the House 
 of Representatives is to be asserted on the plea of 
 necessity, the ground is too broad, and the result too 
 indefinite ; that the executive, and every coordinate, 
 and even subordinate branch of the government, may 
 resort to the same justification, and the whole assume 
 to themselves, in the exercise of this power, the most 
 tyrannical licentiousness. 
 
 This is, unquestionably, an evil to be guarded 
 against; and if the doctrine may be pushed to that 
 extent, it must be a bad doctrine, and is justly 
 denounced. 
 
 But what is the alternative ? The argument obvi- 
 ously leads to the total annihilation of the power of 
 the House of Bepresentatives to guard itself from con- 
 
 21 
 
— 162 — 
 
 tempts, and leaves it exposed to every indignity and 
 interruption that rudeness, caprice, or even conspiracy, 
 may meditate against it. This result is fraught with 
 too much absui-dity not to bring into doubt the sound- 
 ness of any argument from which it is derived. That 
 a deliberative assembly, clothed with the majesty of 
 the people, and charged with the care of all that is 
 dear to them; composed of the most distinguished 
 citizens, selected and drawn together from every 
 quarteir of a great nation; whose deliberations are 
 required by public opinion to be conducted under the 
 eye of the public, and whose decisions must be clothed 
 with all that sanctity which unlimited confidence in 
 their wisdom and purity can inspire ; that such an 
 assembly should not possess the power to suppress 
 rudeness, or repel insult, is a supposition too wild to 
 be suggested. And, accordingly, to avoid the pressure 
 of these considerations, it has been argued that the 
 right of the respective houses to exclude from their 
 presence, and their absolute control within their own 
 walls, carry with them the right to punish contempts 
 committed in their presence; (a) while the absolute 
 legislative power given to Congress, within this district, 
 enables them to provide by law against all other insults 
 against which there is any necessity for providing. 
 
 It is to be observed, that so far as the issue of this 
 cause is implicated, this argument yields all right of 
 the plaintiff in error to a decision in his favor ; for 
 non constat, from the pleadings, but that this warrant 
 
 (a) It is denied, in the present inquiry, that the absolute control of the 
 respective houses within their own walls carries with it any such power in the 
 case supposed. 
 
— 163 — 
 
 issued for an offense committed in the immediate 
 presence of tlie house. 
 
 Nor is it immaterial to notice what difficulties the 
 negation of this right in the House of Representatives 
 draws after it, when it is considered that the conces- 
 sion of the power, if exercised within their walls, 
 relinquishes the great grounds of the argument, to 
 wit: the want of an express grant, and the unrestricted 
 and undefined nature of the power here set up. For 
 why should the house be at liberty to exercise an 
 ungranted, an unlimited, and undefined power within 
 their walls, any more than without them? If the 
 analogy with individual right and power be resorted 
 to, it wrill reach no further than to exclusion, and it 
 requires no exuberance of imagination to exhibit the 
 ridiculous consequences which might I'esult from such 
 a restriction, imposed upon the conduct of a delibera- 
 tive assembly. 
 
 Nor would their situation be materially relieved by 
 resorting to their legislative power within the district. 
 That power may, indeed, be applied to many purposes, 
 and was intended by the Constitution to extend to 
 many purposes indispensable to the security and 
 dignity of the General Government; but they are pur- 
 poses of a morq grave and general character than the 
 offenses which may be denominated contempts, and 
 which, from their very nature, admit of no precise 
 definition. Judicial gravity will not admit of the 
 illustrations which this remark would admit of. Its 
 correctness is easily tested by pursuing, in imagination, 
 a legislative attempt at defining the cases to which the 
 epithet contempt might be reasonably applied. 
 
 But although the offense be held undefinable, it is 
 
— 164 — 
 
 justly contended tliat the punisliment need not be 
 indefinite. Nor is it so. 
 
 We are now considering the extent to which the 
 punishing power of Congress, by a legislative act, may 
 be carried. On that subject, the bounds of their power 
 are to be found in the provisions Of the Constitution. 
 
 The present question is, what is the extent of the 
 punishing power which the deliberative assemblies of 
 the Union may assume and exercise on the principle 
 of self-preservation ? 
 
 Analogy, and the nature of the case, furnish the 
 answer: "The least power adequate to the end pro- 
 posed;" which is the power of imprisonment. It may, 
 at first view, and from the history of the practice of 
 our legislative bodies, be thought to extend to other 
 inflictions. But every other will be found to be mere 
 commutation for confinement; since commitment alone 
 is the alternative where the individual proves contu- 
 macious. And even to the duration of imprisonment 
 a period is imposed by the nature of things, since the 
 existence of the power that imprisons is indispensable 
 to its continuance ; and although the legislative power 
 continues perpetual, the legislative body ceases to exist 
 on the moment of its adjournment or periodical dis- 
 solution. It follows that imprisionment must termi- 
 nate with that adjournment. 
 
 This view of the subject necessarily sets bounds to 
 the exercise of a caprice which has sometimes dis- 
 graced deliberative assemblies, when under the influ- 
 ence of strong passions, or wicked leaders, but the in- 
 stances of which have long since remained on record 
 only as historical facts, not as precedents for imitation. 
 In the present fixed and settled state of English in- 
 
— 165 — 
 
 stitutions, there is no more danger of their being re- 
 vived, probably, than in our own. 
 
 But the American legislative bodies haVe never 
 possessed, or pretended to the omnipotence which con- 
 stitutes the leading feature in the legislative assembly 
 of Great Britain, and which may have led occasionally 
 to the exercise of caprice, under the specious appear- 
 ance of merited resentment. 
 
 If it be inquired, what security is there, that with 
 an officer avowing himself devoted to their will, the 
 House of Representatives will confine its punishing 
 power to the limits of imprisonment, and not push it 
 to the infliction of corporal punishment, or even death, 
 and exercise it in cases affecting the liberty of speech, 
 and of the press ? the reply is to be found in the con- 
 sideration that the Constitution was formed in and for 
 an advanced state of society, and rests at every, point 
 on received opinions and fixed ideas. It is not a new 
 creation, but a combination of existing materials, 
 whose properties and attributes were familiarly under- 
 stood, and had been determined by reiterated experi- 
 ments. It is not, therefore, reasoning upon things as 
 they are, to suppose that any deliberative assembly, 
 constituted under it, would ever assert any other rights 
 and powers than those which had been established 
 by long practice, and conceded by public opinion. 
 Melancholy, also, would be that state of distrust which 
 rests not a hope upon a moral influence. The most 
 absolute tyranny could not subsist where men could 
 not be trusted with power because they might abuse it, 
 much less a government which has no other basis than 
 the same morals, moderation, and good sense of those 
 who compose it. Unreasonable jealousies not only 
 
— 166 — 
 
 blight the pleasures, but dissolve the very texture of 
 society. 
 
 But it is argued that the inference, if any, arising 
 under the Constitution, is against the exercise of the 
 powers here asserted by the House of Representatives; 
 that the express grant of power to punish their 
 members respectively, and to expel them, by the 
 application of a familiar maxim, raises an implication 
 against the power to punish any other than their own 
 menibers. 
 
 This argument proves too much; for its direct appli- 
 cation would lead to the annihilation of almost every 
 power of Congress. To enforce its laws upon any 
 subject without the sanction of punishment is obviously 
 impossible. Yet there is an express grant of power to 
 punish in one class of cases, and one only ; and all the 
 punishing power exercised by Congress in any cases, 
 except those which relate to piracy and offences against 
 the laws of nations, is derived from implication, (a) 
 Nor did the idea ever occur to any one, that the 
 express grant in one class of cases repelled the 
 assumption of the punishing power in any other. 
 
 The truth is, that the exercise of the powers given 
 over their own members, was of such a delicate nature, 
 that a constitutional provision became necessary to 
 assert or communicate it. Constituted as that body is, 
 of the delegates of confederated States, some such 
 
 (a) The power of Congress to enact penal laws which are necessary and 
 proper for carrying into execution any power of this government, does not 
 arise by implication. It is given in the same terms with all other powers of 
 Congress. That is to say, it is given expressly. It is found in the last clause 
 of section 8, Article 1. In using this express power, Congress is not called 
 upon to imply anything ; it has only to ascertain that the thing proposed 
 comes within the descriptive terms, " necessary and proper," etc. 
 
— 167 — 
 
 provision was necessary to guard against their mutual 
 jealousy, since every proceeding against a representa- 
 tive would indirectly affect the honor or interests of 
 the State which sent him. 
 
 In reply to the suggestion that, on this same 
 foundation of necessity, might be raised a superstruc- 
 ture of implied powers in the executive, and every 
 other department, and even ministerial officers of the 
 government, ■ it would be sufficient to observe, that, 
 neither analogy nor precedent would support the 
 assertion of such powers in any other than a legislative 
 or judicial body. Even corruption anywhere else 
 would not contaminate the source of political life. In 
 the retirement of the cabinet, it is not expected that 
 the executive can be approached by indignity or 
 insult ; nor can it ever be necessary to the executive, 
 or any other department, to hold a public deliberative 
 assembly. These are not arguments ; they are visions 
 which mar the enjoyment of actual blessings with the 
 attack or feint of the harpies of imagination. 
 
 As to the minor points made in this case, it is only 
 necessary to observe, that there is nothing on the face 
 of this record from which it can appear on what 
 evidence this warrant was issued. And we are not to 
 presume that the House of Representatives would have 
 issued it without duly establishing the fact charged 
 upon the individual. And, as to the distance to which 
 the process might reach, it is very clear that there. 
 exists no reason for confining its operation to the limits 
 of the District of Columbia ; after passing these limits, 
 we know no bounds that can be prescribed to its range 
 but those of the United States. And why should it 
 be restricted at other boundaries ? Such are the limits 
 
— 168 — 
 
 of the legislating powers of that body; and the 
 inhabitant of Louisiana or Maine may as probably 
 charge them with bribery and corruption, or attempt, 
 by letter, to induce the commission of either, as the 
 inhabitant of any other section of the Union. If the 
 inconvenience be urged, the reply is obvious ; there is 
 no difficulty in observing that respectful deportment, 
 which will render all apprehension chimerical. 
 Judgynent affirmed. 
 
KP k-gh-O J27 
 
 Author Vol 
 
 James, Charles Pinckney 
 
 Ti„j Tlie power of Coiigress to ^^^ 
 punish contempts and breaches 
 
 
 
 Date 
 
 Borrower's Name