Constitutional History of England, Henry VII to George II. Volume 3 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 3 of 3
Hallam, Henry
Constitutional history -- Great Britain
It does not appear that any commitment for breach of privilege was
disputed until the year 1751; when Mr. Alexander Murray, of whom
mention has been made, caused himself to be brought before the court
of king's bench on a habeas corpus. But the judges were unanimous in
refusing to discharge him. "The House of Commons," said Mr. Justice
Wright, "is 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 is for; if it did appear, we could not judge
thereof."--"This court," said Mr. Justice Denison, "has no
jurisdiction in the present case. We granted the habeas corpus, not
knowing what the commitment was; but now it appears to be for a
contempt of the privileges of the House of Commons. What the
privileges of either house are we do not know; nor need they tell us
what the contempt was, because we cannot judge of it; for I must call
this court inferior to the Commons with respect to judging of their
privileges, and contempts against them." Mr. Justice Foster agreed
with the two others, that the house could commit for a contempt,
which, he said, "Holt had never denied in such a case as this before
them."[400] It would be unnecessary to produce later cases which have
occurred since the reign of George II., and elicited still stronger
expressions from the judges of their incapacity to take cognisance of
what may be done by the Houses of Parliament.
Notwithstanding such imposing authorities, there have not been wanting
some who have thought that the doctrine of uncontrollable privilege is
both eminently dangerous in a free country, and repugnant to the
analogy of our constitution. The manly language of Lord Holt[401] has
seemed to rest on better principles of public utility, and even
perhaps of positive law. It is not however to be inferred that the
right of either house of parliament to commit persons, even not of
their own body, to prison, for contempts or breaches of privilege,
ought to be called in question. In some cases this authority is as
beneficial, and even indispensable, as it is ancient and established.
Nor do I by any means pretend that if the warrant of commitment merely
recites the party to have been guilty of a contempt or breach of
privilege, the truth of such allegation could be examined upon a
return to a writ of habeas corpus, any more than in an ordinary case
of felony. Whatever injustice may thus be done cannot have redress by
any legal means; because the House of Commons (or the Lords, as it may
be) are the fit judges of the fact, and must be presumed to have
determined it according to right.
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