ment is holden? 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 course 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 that they have, in fact, possessed and used."1 1 The Speaker, in issuing such a warrant, does not, according to Bayley, J., act in the character of a subordinate officer, but in that of a member of the House. "When the House make an order that their Speaker shall issue his warrant, they do not direct him to do it as a subordinate minister to them, but only as being the individual member of greatest dignity in the House; by whom, on this and other occasions, the House speaks and acts; and his act in this respect is not, I think, the act of an officer, but the act of a member of the House. But if,” adds the learned judge, “it were the act of an officer of the House, acting under and by virtue of its judgment on the subjectmatter, I can not help thinking that, where a court has competent jurisdiction to decide upon a point, and has decided and given judgment upon it, and they direct their officer to carry that judgment into execution; the officer is protected by that judgment." This was so decided by the Court of Exchequer Chamber (Howard v. Gossett, 10 Q. B. 359; Parke, Alderson, and Rolfe, BB., Coltman, Maule, and Creswell, JJ.), reversing the decision of the majority of the Court of Queen's Bench, who held a Speaker's warrant void, because it did not show a sufficient authority on the face of it, to justify the defendant in all he admitted to have done. Parke, B., in delivering the unanimous judgment of the Exchequer Chamber, says: "Writs issued by a superior court, not appearing to be out of the scope of their jurisdiction, are valid; and, of themselves, without any further allegation, a protection to all officers and others in their aid, acting under them; and this, although they be, on the face of them, irregular, as a capias against a peeress 139. "There is no power," says Kent,1 "expressly given to either house of congress to punish for contempts, except when committed by their own mem(Countess of Rutland's Case, 6 Rep. 54 a); or void in form, as a capias ad respondendum not returnable the next term (Parsons v. Lloyd, 3 Wils. 341); for the officers ought not to examine the judicial act of the court whose servants they are, nor exercise their judgment touching the validity of the process in point of law, but are bound to execute it, and are therefore protected by it (Turner v. Filgate, 1 Lev. 95; Cotes v. Michill, 3 Id. 20). . . If, in these courts, the writ of attachment need not state any special grounds in order to show that the court is acting duly, formally, and regularly, what good reason can be assigned for requiring the House of Commons to do so? If the writ of attachment in the general form used, is a protection to the sheriff or the officer of the court executing it (as it undoubtedly is); and he need state nothing in his plea but the issuing of the attachment (Levinz's Entries, p. 191; Britton v. Cole, I Salk. 408; Com. Dig. " Pleader," 3 M. 24), why should not the warrant of the Speaker, in a general form, be equally a protection to the sergeant-at-arms, the proper officer of the House? We are clearly of opinion that at least as much respect is to be shown, and as much authority to be attributed to these mandates of the House, as to those of the highest courts in the country; and if the officers of the ordinary courts are bound to obey the process delivered to them, and are therefore protected by it, the officer of the House of Commons is as much bound and equally protected. . . . . The possibility of abuse, which is urged as an objection to the power of either House to issue its mandate in such a form, is no valid argument against its existence. If it were, it would apply equally to all the superior courts, which, without doubt, have such power; and it would apply also to the other admitted legal powers of these courts, which may be abused without adequate remedy. In case of an improper exercise of the power of attachment by a court of law or equity, or by either branch of the High Court of Parliament, there can be no appeal: the only remedy is by application to the sense of justice of each court; and it would be improper to suppose that any one of them would be more likely to abuse the power, or less likely to grant redress, than another." The warrant of commitment is not to be construed strictly bers; but in the case of Anderson, who was committed by order of the house of representatives, for a contempt of the house, and taken into custody by the sergeant-at-arms, an action of trespass was carried by writ of error to the supreme court of the United States; which court decided that the house had that power, and that it was an implied power, and of vital importance to the safety, character, and dignity of the house." 2 It seems indisputable that such a doctrine is of vital necessity to the usefulness of a legislative assembly. But, since it contemplates only the offense against the body in session, and not an offense against. the laws of the land, or the dignity of the government (which offense would be sedition—a crime, as we have seen, almost unknown amongst us), the power to punish need not and does not extend beyond the as that of an inferior court or justice of the peace, but it is to be construed as a writ of a superior court, not appearing on the face of it to be beyond the scope of its jurisdiction (Howard v. Gossett, 10 Q. B. 359); and therefore the warrant, though it does not specify the cause of arrest, furnishes a justification to the officer who executes it. Id. 2 1 Anderson v. Dunn, 6 Wheat. 204. 2 It is a power inherent in all legislative assemblies, and is essential to enable them to execute their great trusts with freedom and safety; and it has been frequently exercised, not only in Congress, but by the respective branches of the state legislatures, and may be considered as indisputably acknowledged and settled (Story's Commentaries, ii. 305, 317). 3 In the case of Howard v. Gossett (10 Ad. & Ell. N. S. 359), the powers and privileges of parliament were very elaborately discussed; but the Court of Exchequer Chamber, in the final decision, placed itself upon the narrow ground, that the speaker's warrant must be construed as process of a superior court, not appearing to go beyond its jurisdiction. In the case of a contempt of court, however, the case is different, for courts, being the impersonation of justice of the state, are always in session, there can be no interregnum to their authority. session in which the contempt was committed, and will terminate upon the adjournment or dissolution of congress. 1 It was held by the supreme court, in the case of Anderson v. Dunn, that the house of representatives has, by necessary implication, a general power of punishing and committing for contempts, notwithstanding that the lex scripta, "the constitution of the United States," had expressly conferred upon it a power to punish "its members"; thereby, as it was argued, on the principle that enumeratio unius est exclusio alterius, prohibiting the jurisdiction in the case of persons not members of the house. "It is true," said Johnson, J., delivering the judgment of the court, “that such 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. That a deliberate 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 quarter of a great nation; whose deliberations are required by public opinion to be conducted under the eye of the public, and whose decisions must છે 1 I 1 Kent. Com. 236. The duration of imprisonment for contempt terminates also in England upon the close of the existing session of parliament. Stockdale v. Hanford, cited in May's Treatise on the Privileges of Parliament, 62; Rex v. Crosby, 3 Wils. Rep. 138; Burdett v. Abbott, 14 East R. 1. 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 motion of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment." Per Johnson, J., in Anderson v. Dunn, 6 Wheat. Rep. 231. 6 Wheat. R. 204. 2 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." What particular acts shall amount to a contempt of either house of congress are not defined; and are, it would seem, left to the judgment and discretion of the house, under the circumstances of each case.1 And, we doubt not, libels which grossly interfered with the usefulness of officers or members of either house, would be held contemptuous by courts. 140. Congress has unquestionably, as we shall have occasion to consider further on, in the chapter upon newspapers, the right to control the publication of its own deliberations. But in the exercise of this right, we know of but a single instance in which that body has proceeded to its extreme powers.? 141. The newspapers of the Union always have enjoyed, and still enjoy, the largest liberty of criticism of Congress and of its officers and members, and show no disposition to be scrupulous of passing the line which separates criticism from vilification and abuse. It is needless to observe that, not only legislative, but the whole law of contempt is one regarded with great disfavor with us, and it is possible that it would only be inforced by our courts with great reluctance and in rare instances. 2 11 Kent. Com. 236 (note). * In 1873, during what has been since known as the " Crédit Mobillier Investigation." In that instance Congress, having resolved that certain of its deliberations should be secret, discovered, nevertheless, that its proceedings were being published in the daily papers, and proceeded to imprison certain reporters who refused to disclose the perpetrators or the ineans employed by them to obtain the prohibited news. See Congressional Globe, 1st series, 42nd Congress, part ii., 846. |