"the House resolved, That this House "doth agree with the Committee, That "the judgment given by the court of "King's Bench, Easter Term, 34 Car. 2, "regis, upon the plea of John Topham, at "the suit of John Jay, to the jurisdiction "of that court; and also the judgments "given against the said Mr. Topham, at "the suit of Samuel Verdon, &c. are illegal, and a violation of the privileges of "Parliament, and pernicious to the rights "of Parliament." Whereupon it was ordered, "That sir Francis Pemberton, sir "Thomas Jones, and sir Francis Wythens, "do attend this House on Wednesday "morning next."

"In consequence of this Order, sir "Francis Pemberton and sir Tho. Jones, "who had been two of the judges of the "court of King's Bench at the time when "the judgment was passed, were heard "in their defence; and afterwards com"mitted to the serjeant at arms, for their "breach of the privileges of this House, by giving judgment to over-rule the "plea to the jurisdiction of the court of "King's Bench."

for staying proceedings in suits brought against members and their servants, while they were protected from such suits during the sitting of parliament.

The roll of parliament 8 Ed. 2. affords the earliest trace which your Committee has found upon this subject.* It is a writ from the King confirmatory of the privi lege of being free from suits in time of parliament, and is in the following words: "Rex mandavit justiciaries suis ad assisas jurat: &c. capiend. assignat: quod supe sedeant captioni corandem ubi comites barones et alii summonati ad parl'regis sunt partes quamdiu dictum parliamentum du

raverit."

kept in the circuits of this present vaca"tion, and that writs of supersedeas might "be awarded in those cases in respect of "the privilege of this House due and appertaining to the members of the same; it is agreed, that those of this House "which shall have occasion to require "such benefit of privilege in that behalf,

Your Committee think it proper to state, That sir Francis Pemberton and sir Thomas Jones, in defending themselves at the bar of this House for their conduct in over-ruling the plea to their jurisdiction" in the actions of Jay v. Topham, &c. defended the judgment they had given, by resting upon the nature of the pleading, and not by denying the jurisdiction or authority of this House; and sir Francis Pemberton expressly admitted, that for any thing transacted in this House, no other court had any jurisdiction to hear and determine it.

Your Committee in the next place think it expedient to state to the House, that there are various instances in which persons committed by the House of Commons have been brought up by Habeas Corpus before the judges and courts of common law; and in these cases, upon its appearing by the return to the Habeas Corpus that they were committed under the Speaker's warrant, they have been invariably remanded.

3. Having stated these instances of the manner in which the acts and commitments of this House have been brought into judgment in other Courts, and the consequences of such proceedings; Your Committee further think it proper, and in some degree connected with this subject, to advert to the course which was adopted

may repair unto Mr. Speaker, to de"clare unto him the state of their cases, "and that he, upon his discretion (if the "cases shall so require) may direct the "warrant of this House to the lord chan"cellor of England, for the awarding of "such writs of supersedeas accordingly."

But the House used to stay also proceedings by its own authority; sometimes by sending the Serjeant at Arms to deliver the person arrested out of custody; and sometimes by letter from the Speaker to the judges before whom the cause was to be tried. Of this latter mode of proceeding, your Committee find many instances previous to the 3d of Charles 1. Your Committee find a decision † against the authority of such a letter, in the court of King's bench, which is reported in the marg. of Dyer's Reports, p. 60 and in Latch, pp. 48 & 150. And shortly after the refusal by the court of King's bench to notice this letter from the Speaker, the

* 4 Co. Inst. 24.

+ Hodges v. Moor, Trin. 3 Car. I.

"

parliament was dissolved.

There are, however, many other instances of this course of proceeding after the restoration, and in the instance of lord Newburgh (23 February 1669) the House ordered the proceedings to outlawry to be staid during the sessions, and the record of the exigents to be vacated and taken off the file. ix. Com. Jour. p. 120.

which the House may give to persons acting under its authority.

4. Upon the whole, it appears to your Committee, that the bringing these actions against the Speaker, and the Serjeant, for acts done in obedience to the orders of this House, is a breach of privileges of this House.

And it appears, that in the several in

The last instance which your Commit-stances of actions commenced in breach tee find of such letters having been of the privileges of this House, the House written, occurs in the lord Bulkeley's case has proceeded by commitment, not only [x. Com. Jour. p. 537.] in 1691, in against the party, but against the solicitor which the Speaker is directed to write and other persons concerned in bringing a letter to the Prothonotary that he do such actions; but your Committee think not make out, and to the sheriff of the it right to observe, that the commitment county of Pembroke that he do not exe- of such party, solicitor, or other persons, cute any writ, whereby the lord Bul-would not necessarily stop theproceedings keley's possessions may be disturbed, until in such action. Mr. Speaker shall have examined and reported the matter to the House, and this House take further order thereon. By the 12 & 13 W. 3. c. 3. this privilege was curtailed ; and further by Stat. 2 & 3 Ann, c. 18.-11 Geo. 2. c. 24.-10 Geo. 3. c. 50.

Lord chief justice De Grey says in Crosby's case, "If a member was arrested "before the 12 & 13 W. 3. the method "in Westminster hall was to discharge "him by writ of privilege under the great seal, which was in the nature of a "supersedeas to the proceeding. The "statute of William has now altered this, "and there is no necessity to plead the privilege of a member of parliament." All these acts merely apply to proceedings against members in respect of their debts and actions as individuals, and not in respect of their conduct as members of parliament; and therefore they do not in any way abridge the ancient law and privilege of parliament so far as they respect the freedom and conduct of members of parliament as such, or the protection

That as the particular ground of action does not necessarily appear upon the writ or upon the declaration, the court before which such action is brought cannot stay the suit or give judgment against the plaintiff, till it is informed by due course of legal proceeding that such action is brought for a thing done by order of the House.

And it therefore appears to your Committee, that even though the House should think fit to commit the solicitor or other person concerned in commencing these actions; yet it will still be expedient that the House should give leave to the Speaker and the Serjeant to appear to the said actions, and to plead to the same; for the purpose of bringing under the knowledge of the court, the authority under which they, acted; and if the House should agree with that opinion, your Committee submits to the House, whether it would not be proper that directions should be given by this House, for defending the Speaker and the Serjeant, against the said actions.

SECOND REPORT FROM THE SELECT COMMITTEE ON PROCEEDINGS RELATIVE TO SIR FRANCIS BURDETT.-Ordered, by the House of Commons, to be printed, [as amended on Re-commitment] 15th June 1810.

Process served upon him in an Action | House; and that this power has been at Law by Sir Francis Burdett ;-and exercised at all times, as far back as the also the Summons served on Mr. journals afford an opportunity of tracing Speaker, and the Notice of Declara- it. And your committee cannot forbear tion delivered to the Serjeant at Arms, observing, that the precedents subjoined at the Suit of the said Sir Francis Bur- to their report establish this law of parlia dett; were referred ;-And to whom ment, upon the ground and evidence of an the Report was again re-committed, immemorial usage, as strong and satisfacwhich was made from the said Com- tory as would be held sufficient in a court mittee;-Have, pursuant to the of law, for the establishment of any legal Orders of the House, further con- right. sidered the Appendix to the said Report, and corrected some of the References to the Authorities therein cited; and have agreed to the following Report;

Your committee, resuming the consideration of the principal matters reserved in their former report, do not think it necessary to state all the various precedents which are to be found of the exercise of the power of commitment by the House of Commons for breaches of privilege and contempt in general, conceiving that to be a power too clear to be called in question, and proved, if proof were necessary, by the same precedents, which they have collected with a view to the point to which they have more immediately directed their attention, and which precedents are subjoined to their report.

The cases which your committee have selected as most directly connected with the subject referred to them, are those of commitments for libel, an offence which tends to excite popular misapprehension and disaffection, endangers the freedom of the debates and proceedings in parliament. and requires the most prompt interposition and restraint. The effect of immediate punishment and example is required to prevent the evils necessarily arising from this offence, which evil it is obvious would be much less effectually guarded against by the more dilatory proceedings of the ordinary courts of law; nevertheless upon some occasions the House of Commons have proceeded against persons committing such offences, by directing prosecutions, or by addressing his Majesty to direct them, as appears by the precedents collected in the Appendix.

From the series of precedents which your committee find on your journals, it will most clearly appear that the House of Commons have treated libels as contempts; that they have frequently punished the authors and publishers of them by commitment, whether those authors and publishers were or were not members of the

Your committee also beg leave to observe, that the general power of commitment was solemnly asserted by the House of Commons in 1675, and in their resolutions of 1701; and was also claimed by the House of Commons, and admitted by the House of Lords in the most explicit terms, in the conference between the two Houses, in the case of Ashby and White, in 1704; although other points arising in that case were strongly controverted between the two Houses.

Your committee further state, that it has been recognized by legal authority, and by the most solemu decisions of the courts of law on various occasions, whenever any question upon it has been brought before them:

By eleven of the judges-in the case of the Aylesbury men. 2 lord Raym. p. 1105. 3 Wils. p. 205.

By the court of King's bench-in Murray's case. 1 Wils. p. 299. 1751.

By the court of Common Pleas in the case of Brass Crosby. 3 Wils. p. 203. 1771.

By the court of Exchequer-in the case of Oliver. 1771.

And that this power of commitment by either House of Parliament, was further recognized by the court of King's bench in the case of Benjamin Flower, 8 Term Reports, p. 323, who had been committed by the House of Lords. And your committee have not found the authority of a single decision to the contrary in any court whatever.

Your committee also beg leave to state, that the judges of the common law have considered libels upon their courts or the proceedings in judicature as contempts, and have frequently punished the authors and publishers of them by summary commitment. This appears from various instances stated in the Appendix which have occurred both in courts of law and equity. Amongst the judges who have curred in those decisions, upon the power of parliament and of the courts of law and

con

Commonwealth.

1559.-TROWER.-For contumelious words against the House.-To the Serjeant-i Jour.

59.

equity to commit for such contempts, are to be found lawyers the most distinguished I-From the beginning of the Journals, to the for their zealous regard for the liberty of the subject, and the most upright, able and enlightened men that ever adorned the seat of justice; and the doctrines laid down by them all coincide with the opinion solemnly delivered by lord chief justice De Grey in Crosby's case, that the power of commitment is "inherent in the "House of Commons from the very na"ture of its institution, and that they can "commit generally for all contempts." 8 Wils. p. 198.

Under all these circumstances, your Committee can have no hesitation in submitting their decided opinion, that the power of Commitment for a libel upon the House, or upon its members, for or relative to any thing said or done therein, is essential to the freedom of debate, to the independence of Parliament, to the security of the liberty of the subject, and to the general preservation of the State.

This power is in truth part of the fundamental law of Parliament; the law of Parliament is the law of the land; part of the lex terræ, mentioned in Magna Charta, where it is declared, that "no freeman shall be taken or imprisoned but by lawful judgment of his peers, or by the law of the land;" and it is as much within the meaning of these words," the law of the land," as the universally acknowledged power of commitment for contempt by the Courts of justice in Westminster Hall, which Courts have inherent in them the summary power of punishing such contempts by commitment of the offenders, without the intervention of a jury.

Your Committee therefore are of opinion, That this power is founded on the clearest principles of expediency and right, proved by immemorial usage, recog nized and sanctioned by the highest legal authorities, and analogous to the power exercised without dispute by Courts of justice; that it grew up with our constitution; that it is established and confirmed as clearly and incontrovertibly as any part of the law of the land, and is one of the most important safeguards of the rights and liberties of the people.

APPENDIX.

APPENDIX (A.)

PRECEDENTS of COMMITMENTS for Words and Publications, Speeches, &c. reflecting on the Proceedings of the House.

1580.-HALL, a Member.-For publishing a
book against the authority of the House.-
To the Tower, also fined and expelled→→
i Jour. 122, 124, 125, 126, 132.
1625.-MONTAGUE. For a great contempt
against the House for publishing a book
traducing persons for petitioning the House.
-To the Serjeant-i Jour. 805, 806.
1628.-LEWES. For words spoken against the
last Parliament.-To the Serjeant-i Jour.
922.

1628. ALEYN.-For a libel on last Parlia
ment. To the Serjeant-i Jour. 925.
1640.-PIERS.-Archdeacon of Bath, for abus-
ing the last Parliament.-To the Serjeant-
ii Jour. 63.

1640.-PRESTON.-Scandalous words against
this House. To the Gatehouse-ii Jour. 71.

N. B.-The King did not leave London till the
10th of January 1641. In the year pre-
ceding there are very many cases of strangers
committed for contemptuous words spoken
against the Parliament.

II.-Precedents of the like nature, from the
Restoration to the Revolution.

1660.-LENTHALL, a Member.-For words in
the House against the preceding Parliament-
To the Serjeant-viii Jour. 24.
-DRAKE. For a pamphlet reflecting on
the Parliament; and impeached.-To the
Serjeant-viii Jour. 183. 185, 186.

CRANFORD. Ditto, Ditto, viii Jour. 193. 1661.-GREGORY and WITHERS.-For pamphlets reflecting on the justice of the House.

To the Tower-viii Jour. 368.-They were prisoners in Newgate, and were committed to the Tower, and ordered into close custody.

1662-GREEN. Ditto, To the Serjeant-Ibid.

446.

1670-WOODWARD.-For a breach of Privilege against a Member, and speaking contemp. tuous words against this House.-To the Serjeant-ix Jour. 147.

1675.-HOWARD.-For a scandalous paper, and a breach of the Privilege of the House. -To the Tower-ix Jour. 364.

1680.-Sir ROBERT CANN, a Member.-For words in the House, reflecting on a Member, brought to the bar, and received a reprimand from the Speaker:-And for words spoken out of the House-committed and expelled. To the Tower-ix Jour. 642. 1680-YARINGTON and GROOME. For a pamphlet against a Member.-To the Serjeant -ix Jour. 654, 656.

1685.-COOKE, a Member.-For words in the House. To the Tower-ix Jour, 760.

IV.--Precedents of the like nature, from 1701 CASES since 1697, of PROSECUTIONS at LAW