“are immediately released from their confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, they would be discharged by the courts, upon a writ of _Habeas Corpus_.”[108]
This statement, coming as it does from the well-known Clerk of the House of Commons, as familiar with the usages of that body as any living man, is of itself authority. But he adduces the weighty words of Lord Denman in the most remarkable case of privilege that has ever occurred in English history, being that of Stockdale and Hansard, which, it is well known, was discussed day by day in Parliament, week by week in Westminster Hall. I have before me the opinions of all the judges on that case, but the words that are particularly pertinent now are quoted by May as follows:--
“However flagrant the contempt, the House of Commons can only commit till the close of the existing session,”--
Mark, Sir, if you please, how positive he is in his language,--
“can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. Though the party should deserve the severest penalties, yet, his offence being committed the day before a prorogation, if the House ordered his imprisonment but for a week, every court in Westminster Hall and every judge of all the courts would be bound to discharge him by _Habeas Corpus_.”[109]
These were the words of the Lord Chief-Justice of England in a most memorable case as late as 1839. This is no ancient authority, but something modern and of our day. It is not expressed in vague or uncertain terms, but in language clear and positive. It is as applicable to the Senate of the United States as to the House of Commons. It is applicable to every legislative body sitting under a constitutional government.
An attempt has been made to claim for the Senate prerogatives which belong to the House of Lords. How so? Is the Senate a House of Lords? Is it an hereditary body? Is it a perpetual body in the sense that the House of Lords is a perpetual body? We know that the House of Lords is in session the whole year round. We know, that, according to a rule of the Civil Law, “_Tres faciunt collegium_,”[110] three make a quorum in the House of Lords. So that the presence of three peers at any time, duly summoned to the chamber, constitutes a sufficient quorum for business. Therefore the House of Lords has in it an essential element enabling it to come together easily and to continue in perpetual session. It is in its character, in the elements of its privileges, clearly distinguishable from the Senate, as it is clearly distinguishable from the House of Commons. Such privileges as the Senate has are derived from the House of Commons rather than from the House of Lords, so far as they are derived from either of these bodies.