as this Court is to the House of Commons, considered as a body in the State, and amenable as its members may be for ill conduct in their office to its animadversions, and certainly are to its impeachment before the Lords, yet, as a court of law, we know no superior but those courts which may revise our judgments for error; and in this respect there is no common term of comparison between this Court and the House. In truth, the House is not a court of law at all, in the sense in which that term can alone be properly applied here; neither originally, nor by appeal, can it decide a matter in litigation between two parties; it has no means of doing so; it claims no such power; powers of inquiry and of accusation it has, but it decides nothing judicially, except where it is itself a party, in the case of contempts. As to them, no question of degree arises between courts; and, in the only sense, therefore, in which this argument would be of weight, it does not apply. In any other sense the argument is of no force. Considered merely as resolutions or acts, I have yet to learn that this Court is to be restrained by the dignity or the power of anybody, however exalted, from fearlessly, though respectfully, examining their reasonableness and justice, where the rights of third persons, in litigation before us, depend upon their validity. But I deny that this inquiry tends to the reversal of any decision of the House; the general resolution and the res judicanda are not identical; the House of Commons has never decided upon the fact on which the plaintiff tendered an issue; that argument will be found by-and-by to apply to the cases of committal for contempt, but it has no place in the consideration immediately before me.

XXVIII

THE CASE OF THE SHERIFF OF MIDDLESEX

3 Victoria, 1840.

[This was a case arising out of that of Stockdale v. Hansard. William Evans and John Wheelton, Sheriff of Middlesex, had been committed to the custody of the Serjeant-at-Arms, having been adjudged guilty of a contempt and breach of privilege of the House of Commons, in executing a writ issued after the judgment given in Stockdale v. Hansard. On January 23, 1840, R. V. Richards moved for a writ of habeas corpus. The Serjeant-at-Arms was directed by the House of Commons to make a return, stating that he "held the bodies" of W. Evans and John Wheelton, "by virtue of a warrant under the hand of Mr. Speaker for a contempt and a breach of the privilege of the House" (Com. Journ. xcv. 25); and

on January 27, 1840, before Denman, C.J., and Justices Littledale, Williams, and Coleridge, it was moved that the prisoners be discharged on the ground that the return to the writ was bad. The court held that (a) a warrant for commitment by order of the House of Commons for contempt of the House need not specify the grounds of the order; (b) it would take judicial notice of the office of the Speaker of the House and his authority to give effect to its order. Judgment accordingly that the prisoners be remanded, not discharged. Wheelton was discharged out of custody on February 11, because confinement endangered his life; but in order to maintain the claim of the House of Commons, Evans was not discharged until April 15, the royal assent to 3 and 4 Vict. c. 9, which altered the law, having been given on April 14. The extracts are quotations from the Judge's decision. For authorities see those under Stockdale v. Hansard.]

There is something in the nature of the Houses themselves which carries with it the authority that has been claimed; though, in discussing such questions, the last important decision is always referred to. Instances have been pointed out in which the Crown has exerted its prerogative in a manner now considered illegal, and the Courts have acquiesced: but the cases are not analagous. The Crown has no rights which it can exercise other than by process of law and through amenable officers, but representative bodies must necessarily vindicate their authority by means of their own, and those means lie in the process of committal for contempt. This applies not to the Houses of Parliament only, but, as was observed in Burdett v. Abbot, to the courts of justice, which, as well as the Houses, must be liable to continual obstruction and insult if they were not intrusted with such powers. It is unnecessary to discuss the question whether each House of Parliament be or be not a court; it is clear that they cannot exercise their proper functions without the power of protecting themselves against interference. The test of the authority of the House of Commons in this respect, submitted by Lord Eldon to the judges in Burdett v. Abbot, was whether, if the Court of Common Pleas had adjudged an act to be a contempt of court, and committed for it, stating the adjudication generally, the Court of King's Bench on a habeas corpus setting forth the warrant, would discharge the prisoner because the facts and circumstances of the contempt were not stated, A negative answer being given, Lord Eldon, with the concurrence of Lord Erskine (who had before been adverse to the exercise of jurisdiction), and without a dissentient voice from the House, affirmed the judgement below. And we must presume that what any court, much more, what either House of Parliament, acting on great legal authority, takes upon it to pronounce a contempt is so.

It was urged that, this not being a criminal matter, the Court was bound by stat. 56 Geo. 3. c. 100. s. 3 to inquire into the case on affidavit, but I think the provision cited is not applicable. On the motion for a habeas corpus, there must be an affidavit from the party applying, but the return, if it discloses a sufficient answer, puts an end to the case, and I think the production of a good warrant is a sufficient answer. Seeing that, we cannot go into the question of contempt on affidavit, nor discuss the motives which may be alleged. indeed (as the courts have said in some of the cases) it would be unseemly to suspect that a body, acting under such sanctions as a House of Parliament, would in making its warrant suppress facts which, if discussed, might entitle the person committed to his liberty. If they ever did so act I am persuaded that on further consideration they would repudiate such a course of proceeding. What injustice might not have been committed by the ordinary courts in past times if such a course had been recognised, as, for instance, if the Recorder of London in Bushell's case, had in the warrant of commitment suppressed the fact that the jurymen were imprisoned for returning a verdict of acquittal. I am certain that such will never become the practice of any body of men amenable to public opinion.

In the present case, I am obliged to say that I find no authority under which we are entitled to discharge these gentlemen from their imprisonment.

XXIX

THE QUEEN v. NELSON AND BRAND

31 Vict., 1867.

[During the Jamaica riots, George William Gordon, a civilian, was tried by court-martial for high treason and complicity in the rebellion, sent tenced and put to death. The court-martial was ordered by Col. Nelson, and presided over by Lieut. Brand; the sentence was approved of by Col. Nelson and Governor Eyre. Subsequently Nelson and Brand were indicted for murder mainly on two grounds: (1) that those who ordered and took part in the trial of Gordon had no jurisdiction; (2) that if they had jurisdiction it was corruptly exercised. Lord Chief Justice Cockburn, in an elaborate charge to the grand jury, reviewed the evidence and stated his view of the law. The salient passages of this charge are here excerpted. The jury found "no true Bill," but made a formal presentment strongly recommending that "martial law" should be clearly defined by legislative enactment, with which recommendation the Lord Chief Justice concurred, adding a "solemn and emphatic protest" against "the exercise of martial law in the form in which it has lately been en

forced." See authorities for Phillips v. Eyre, and add Journal for Soc. of Comp. Leg., April, 1900; L.Q.R. xviii.]

The first question, therefore, is whether the Governor had authority to proclaim martial law-a question obviously of infinite importance, not only in this case, but in any other similar case which may arise hereafter. Now one thing is quite clear-namely, that the power of a Governor to declare martial law can proceed only from one of two sources. It must either be derived from the commission which he has received from the Crown, or from some statute, either of imperial or local legislation. It can be derived from no other source. A Governor, simply as such, would have no power to declare martial law; but, if the terms of his commission are large enough to invest him with such authority as the Crown possesses, and the Crown has, by virtue of the prerogative inherent in it, the power to proclaim martial law, the Governor would have that power. So, again, if, by virtue of any imperial or local legislation, authority to declare and exercise martial law has been conferred upon him, he would be entitled, on the necessity arising, to act upon that authority. We have, therefore, to inquire, on the present occasion, whether by virtue of his commission or by virtue of any legislative enactment the Governor of Jamaica was invested with such power.

This being so, it follows that the Governor, assuming, as I do for the present purpose, that his commission confers on him all the executive power of the Crown in the government of the island, can have no further power to declare martial law, as derived from his commission, than that which the Sovereign would have. We are, therefore, brought face to face, with this great constitutional question -Has the Sovereign, by virtue of the prerogative of the Crown, in the event of rebellion, the power of establishing and exercising martial law within the realm of England? . . .

We need not trouble ourselves with the consideration of whether there ought to be such a thing as martial law or not: the question for us is whether there is such a thing, and whether the Crown has the power, and whether the representives of the Crown in our colonies abroad have the power, to call it into action. And if martial law can thus be called into existence, then arises this allimportant question, what this martial law is.

So far as I have been able to discover, no such thing as martial law has ever been put in force in this country against civilians, for the purpose of putting down rebellion. I own, therefore, that I am a little astonished when I find persons, in authority and out of

authority, talking and writing about martial law in the easy familiar way in which they do talk about it, as one of the settled prerogatives of the Crown in this country, and as a thing perfectly ascertained and understood, when, so far as I can find it never has been resorted to or exercised in England for such a purpose at all. . . .

Assuming the existence of the power to put martial law in force, whether as inherent in the prerogative or as derived from statutory enactment, a question of vital importance presents itself, namely, What is this martial law which is thus to supersede the common law of England? . . .

In like manner, if a mutiny breaks out on board ship, immediate force may be resorted to; you may quell the mutiny if necessary by killing those engaged in it. So, if a regiment in an army, or a company in a regiment, breaks out into mutiny, you may put it down at once by the immediate application of force. You may order other troops to fire on them, or put them to the sword, if they refuse to submit. But this is not what can properly be called martial law. It is part and parcel of the law of England-or perhaps I should say it is a right paramount to all law, and which the law of every civilised country recognises that life may be protected or crime prevented by the immediate application of any amount of force which, under the circumstances, may be necessary. But that is not what we are dealing now with. What we are considering is whether, for the suppression of a rebellion, you may subject persons not actively engaged in it, and whom you therefore cannot kill on the spot, to an anomalous and exceptional law, and try them for their lives without the safeguards which the law ought to afford. . . .

Now, if such be the law as applied to the soldier, why should it not be the law applicable to the civilian? Why are we to be told that when you come to deal with a civilian by martial law, it is to be something different from the martial law which is applied to the soldier? I confess myself at a loss for any reason that can be given for that assertion, and certainly before I adopt the doctrine that a law, if it may be called a law, of the uncertain and arbitrary character which martial law is said to be, can be administered in this country, and that Englishmen can be tried for their lives under it, I shall require something more than assertion unsupported by authority of this I am perfectly sure-namely, that in those repertories of the law of England which have been compiled by the sages and fathers of the law, and which have been handed down to us with the sanction of their great names, to inform us, and those who are to come after us in future ages, what the law of England was and is,