Hiss v. Bartlett , 69 Mass. 468 ( 1855 )

Shaw, C. J.

This case arises upon the privilege of a representative, to be exempted from arrest on mesne process, going to, returning from or attending the general court. Const, oi Mass. c. 1, § 3, art. 10.

Can this be inquired into by habeas corpus ? I think it can. It is a question of personal privilege, not of the privilege of the house. If it were, it might be more questionable. Wilkes1s case, 19 Howell’s State Trials, 981. Holiday v. Pitt, 2 Stra. 985.

The question is whether the house of representatives have the power to expel a member. The only clause in the constitution which can have a bearing on this question is as follows: “ The house of representatives shall be judge of the returns, elections and qualifications of its own members, as pointed out in the constitution; shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own house. They shall have authority to punish by imprisonment every person, not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence; or who, in the town where the general court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for any thing said or done in the house; or who shall assault any of them therefor; or who shall assault or arrest any witness or other person ordered to attend the house, in his way in going or returning; or who shall rescue any person arrested by the order of the house.” c. 1, § 3, art. 10. The authority to be “ judge of the returns, elections and qualifications of its own members,” does not limit their power; they are judges in other respects, in all respects.

They “ shall settle the rules and orders of proceeding.” It is said they had made no rule on the subject previously. I doubt whether that is necessary. They cannot enlarge their own powers by a rule. Why may they not make a particular rule, when the exigency arises ? The more obvious purpose of this clause was, no doubt, to give an authority to make general roles. But a case may arise, unforeseen, for which no rule had been previously prescribed. I am rather inclined to think that this clause gives the power.

But if not, the omission of an authority to punish members, when that of punishing persons, not members, is so distinctly given, may well have been made because their implied power over their own members was full and complete, though an express grant of power was necessary, in regard to persons not members. The maxim, expressio unius exclusio est aUerius, does not apply except where the two cases are alike.

There is a marked difference between the power of punishment and the power of expulsion. If not punishment, then the twelfth and twenty-fourth articles of the Declaration of Rights, as to trial by peers, and opportunity to defend, and the injustice of punishing acts not declared crimes by preceding laws, do not apply. The power to expel implies the power to try; and if, by the Constitution, they have the power to expel, the power to try is expressly given them by c. 1, § 3, art. 11.

There is nothing to show that the framers of the constitution intended to withhold this power. It may have been given expressly in other states, either ex majori cautela, or for the purpose of limiting it, by requiring a vote of more than a majority.

It is suggested that the true remedy is by impeachment. But that form of proceeding has never been applied to members of the legislature; and would be slow, laborious and expensive, and inadequate to the object sought to be attained. Impeachment lies only for purposes of punishment, by deprivation of office, and disqualification to hold office, leaving the offender still liable to indictment, if the offence be indictable.

The power of expulsion is a necessary and incidental powei, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally or morally, wholly unfit; he may be afflicted with a contagious disease, or insane, or noisy, violent and disorderly, or in the habit of using profane, obscene and abusive language. It is necessary to put extreme cases, to test a principle.

If the power exists, the house must necessarily be the sole judge of the exigency which may justify and require its exercise.

As to the law and custom of parliament, the authorities cited clearly show that the jurisdiction to commit, and also to expel, has long been recognized, not only in parliament, but in the courts of law, for the purposes of protection and punishment. I here confine myself strictly to the law of personal privilege from arrest. There has been much debate upon abuse of power, and excess of claim of privilege; but the power to commit or expel is uniformly admitted. The whole subject of privilege is much discussed in Thompson's case, 8 Howell’s State Trials, 1, Sf note. Formerly it required a writ of privilege to discharge from arrest; but the practice now is to discharge on motion Holiday v. Pitt, 2 Stra. 985. Crosby's case, 19 Howell’s State Trials, 1150.

But to look at the more recent cases upon the question of jurisdiction, some of which were cited by the counsel for the prisoner. The case of Burdett v. Abbot, 14 East, 1, was an action of trespass by Sir Francis Burdett, a member of the house of commons, against the speaker of the house, for breaking and entering his dwelling-house, and carrying him to the tower. The speaker justified under the order of the house for the commitment of the plaintiff for contempt, for libels published by him injurious to the house; and it was held a good justification. An elaborate judgment was given by Lord Ellenborough, fully recognizing the power of the house of commons to commit one of its own members for breach of its privilege by publishing libels. This decision was affirmed on error in the exchequer chamber. 4 Taunt. 401.

The next is the well known case of Stockdale v. Hansard, which led to a sharp contest between the house of commons and the king’s courts. 7 Car. & P. 731. 9 Ad. & El. 1. 11 Ad. & El. 253, 273, 297. The controversy was ultimately settled in 1840, by St. 3 & 4 Viet. c. 9. The question was, whether the publication of matter, which would otherwise be libellous against an individual, could be justified under an order of the house of commons; and the courts of law held it no justification. That was a civil action. Many of the remarks of the judges intimate what are the privileges of the house of commons. Coleridge, J. said: “ No one, in the least decree acquainted with the constitution of the country, will doubt that in one sense the house is alone to judge of its own privileges—that in the case of a recognized privilege the house alone can judge whether it has been infringed, and how the breach is to be punished.” 9 Ad. & El. 218.

If the house of commons have the power to commit, it appears to me, a fortiori, that they have the power to expel.

But it is suggested that, although the Constitution, c. 6, art. 6, provides that all the laws, which have heretofore been adopted, used and approved, and usually practised on in the courts of law, shall still remain in full force, until altered or repealed by the legislature ; this does not extend to the laws and customs of parliament. This conclusion may perhaps admit of some doubt.

For a long time, it was maintained by those who favored privilege and prerogative, that these were not inquirable into, in the common law courts ; and the great struggle in. modern times has been to bring these privileges within the cognizance of courts of law, especially when occasion arises to inquire into them collaterally.

But there is another consideration, which seems to render it proper to look into the law and practice of parliament, to some extent. I am strongly inclined to believe, as above intimated, that the power to commit and to expel its members was not given to the house and senate, respectively, because it was regarded as inherent, incidental and necessary, and must exist in every aggregate and deliberative body, in order to the exercise of its functions, and because without it such body would be powerless to accomplish the purposes of its constitution; and therefore any attempt to express or define it would impair, rather than strengthen it. This being so, the practice and usage of other legislative bodies, exercising the same functions, under similar exigencies; and the reasons and grounds, existing in the nature of things, upon which their rules and practice have been founded; may serve as an example and as some guide to the adoption of good rules, when the exigencies arise under our constitution.

But independently of parliamentary custom and usages, our legislative houses have the power to protect themselves, by the punishment and expulsion of a member.

It is urged that this court will inquire whether the petitioner has been tried. But if the house have the jurisdiction for any cause to expel, and a court of justice finds that they have in fact expelled, I think we are bound to say, that when he was arrested, he was not a member of the house of representatives, and his privilege from arrest was at an end. Prisoner remanded.