Having, in a previous article, illustrated, by the most striking examples drawn from the history of English and American jurisprudence, the power which the courts have claimed and exercised to create and abrogate law, we now propose to inquire into the source of this power and its legitimacy.

First, as to its source: All government, whether human or divine, despotic or democratic, exercised by king or people, implies, primarily, the existence of only two forces or powers, (1) to legislate or make the laws, (2) to execute or enforce them.

This division, simple and correct in theory, is found incorrect in practice, from the infirmity of human nature. It implies perfect legislation. It implies a system of written laws, capable of embracing every complication affecting the rights of person or of property. It must anticipate every need in the ever advancing tide of human progress, and must provide for every advancement in the refinements of property.

This is a field that no merely human legislation could occupy. Such legislation could only emanate from that "Power to whom the present, the past and the future are alike known."

Human legislation then, being imperfect and incapable of providing, except in a general and imperfect manner, for the wants of civilized life, a vast field of legislation is left unoccupied. And the inquiry arises, to which of these two great powers of government belongs the right to provide, on the moment, as it were, for those cases that no rule or known law is adapted to meet?

The history of all free governments-all those in which the legislative and executive departments are separate-shows, that that power has ever been claimed and exercised by the executive branch. Under the constitution of the Roman republic, the senate, in theory, made the laws and the consul executed them. He also exercised the transcendent power of construing the laws enacted by the senate, and of formulating rules for those cases for which the legislature had failed to provide. But in the contest that took place between the plebes and patricians, respecting the right to hold the office of consul, which was terminated about the year of Rome 384 by the election of a plebian to that office, the patricians, more skilled in the science of government, and knowing the weight in the State of the highest judicial power, stipulated, as a condition for their consent to such election, that the judicial power should be separated from the consular office, and that a pretor should be appointed who should always be a patrician.

So also, under the English Constitution, in the earlier periods of its history, the king was the highest judicial officer. He sat in the aula regis, and dispensed justice in person. But the increasing cares of state finally compelled him to delegate this power to others, from

which in process of time came the present organization of their courts, though justice is still dispensed in the king's name in all the courts of that kingdom; and Sir Wm. Blackstone informs us that the king is still supposed to be present in person at the sittings of the King's Bench.

The king is also termed the "fountain of justice," and the "courts are" regarded as "emanations from the royal prerogative." From these courts our own are largely copied, and the same power exercised by the king in the aulia regis has descended to and is exercised by our own courts.

But it was not until long after the English courts had assumed to construe, and, even, by the aid of fictions, to abrogate, the enactments of parliament, that the king would concede to the courts the right to decide any thing pertaining to his profit or power without consulting him; and the memorable contest between King James I and his judges, which resulted in the deposition of Lord Chief Justice COKE from his office, arose from the refusal of that sturdy judge to concede to the king the right of being personally consulted in the decision of matters concerning his prerogatives.

These illustrations sufficiently show that the power to construe laws already made, and to create others, where the legislature have not acted, as the exigencies of society require, has ever been claimed and exercised by the executive department. Though in theory, as we have before stated, the right to occupy every field in legislation-to create every rule that pertains to person and property-belongs to the legislature-yet a moment's reflection will show us that the exercise of this power by the executive was, under the simple division of legislative and executive, necessary.

It is by this branch that the defect in the law is first ascertained, and the delay and expense attendant upon the legislature coming from all parts of the country, to say nothing of their lack of the requisite knowledge and training, to declare the proper rule of law in all cases that might arise when assembled, render their action practically impossible in such cases, even if it were claimed by them.

The origin, then, of this power of legislation by the courts arises, 1st, from the inherent imperfection of human legislation, its inability to provide a priori for the needs of a progressive civilization, which requires another power with better training and more knowledge to supplement and perfect their work; or, 2d, from express delegation from the executive branch which formerly exercised those powers. The legitimacy of the exercise of this power has necessarily been somewhat embraced in the inquiry into its source. But there are several other modes by which its legitimacy may be more fully tested:

1. By its adaptation, as at present exercised, to produce the best results;-but of this we shall treat more fully in a subsequent chapter on the advantages of its exercise by the courts:

2. By its being a legitimate representative of the powers exercised by the Roman pretors in the best days of the republic, and of the power expressly delegated by the English kings:

Or, 3d, from necessity, since society could not be restrained and governed, unless there were somo

power to which ready appeal might be made to redress wrong and protect the rights of person and property, in the absence of written law.

All governments of law rest on an implied social compact, by which the individual surrenders a portion of his rights for the sake of that protection which governments give.

This social compact implies, as a fundamental principle, that, in consideration of each individual giving up a portion of his natural rights, the remainder should be more secure. And how could this be effected were there not always present this reserve power-this power of instant legislation-the power of furnishing a remedy for every wrong as rapidly as it might be developed? Otherwise, failing to obtain the stipulated security, disorders would arise, and the bonds of society would be loosed, and individuals would become the self-constituted executives of the land; for "justice delayed is rank injustice."

We shall reserve an examination into the various modes by which our laws are created and abrogated by the courts, as well as the advantages of the exercise of this power by them, till another article.

THE BREACH OF PRIVILEGE CASES. On the 21st day of January last, a subpoena was issued under the authority of the court, requiring one Henry Ray to appear and testify in a certain criminal proceeding pending before the Grand Jury of the Saratoga Oyer and Terminer. The subpoena was served on Mr. Ray, at the city of Albany, who declined to obey its mandates, and pleaded in excuse his privilege as a member of the Assembly of the State of New York. The district attorney of that county thereupon applied to the court presided over by Mr. Justice Potter, and procured an attachment against Mr. Ray for such disobedience. Upon this attachment Mr. Ray was arrested, taken before the Grand Jury, and required to testify in such proceedings.

The arrest of Mr. Ray at once created a commotion in the Assembly, of which he was a member, as it was claimed to be a flagrant violation of the privilege of that body. A committee was thereupon appointed to investigate the matter of the arrest, which committee has recently made its report.

As the proceeding is somewhat novel in character, and the question involved one of great importance, we feel justified in giving place to the following lengthy extract from the committee's report, in which is embraced a review of the authorities on the question of legislative privilege.

After setting forth the facts of the arrest, and of the examination of Mr. Justice Potter and others, relative thereto, the committee proceed as follows:

"The question therefore arises, and the only question which your committee is called upon to consider i3, whether or not Mr. Ray was exempt from arrest under the process issued in this case.

"The privilege of legislative bodies is as old as the common law, from which we have gathered our liberties, and by which the rights of the people have been and are to be protected. It is older than Magna Charta, older than the writ of habeas corpus, older

than the courts either of law or equity, and from the parliament of a nation and legislatures of the States have come those laws and rules of practice which are calculated to secure to the citizen all the benefits and privileges conferred by the government under which he may live. Your committee, in the examination of the question, have found that, in this country, the violations of parliamentary privilege, either of members of Congress or of members of State Legislatures, have been rare. In the earlier history of the British Parliament, when the House of Commons, for long years, struggled against the prerogative of the crown, against the overbearing aristocracy of the lords, and against the assumption of power on the part of the courts, which were for centuries the mere servants and tools of the crown, we find many instances where the Commons secured and maintained the privileges of members of that body.

"In the case of Shirley v. Fagg, as far back as 1675, Mr. Fagg, a member of the House of Commons, was summoned on an appeal, issuing from the Court of Chancery, to appear before the bar of the House of Lords and plead to an appeal. The House of Commons held this to be an unquestioned violation of its privilege, and passed on the 18th of May, 1675, the following resolution:

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Resolved, That it is the undoubted right of this House that none of their members be summoned to attend the House of Lords during the session or privileges of the Parliament.' (3 Grey, 170).

"On the 20th of May, 1675, Sir Thomas Leigh, from a committee appointed by the House of Commons, gave the following, among other reasons, why a member of the Commons was not compelled to appear before the bar of the House of Lords, and this, it will be borne in mind, was when the House of Lords was sitting as a Court of Appeals of the British realm, "The privilege of a member is the privilege of the House, and is a restraint to the proceeding of inferior courts, but not to the House itself;' thus implying that the House whose privilege has been violated is the only body possessing the right to pass upon the question whether such privilege has or has not been violated. (2 Grey, 399.) It is laid down as a principle in parliamentary law, in England, that the privilege of Parliament extends to all cases except three, treason, felony and breach of the peace. (4 Inst., 25; Lex. Parl., 381.)

"Sir William Blackstone lays down the following as the privileges of Parliament: '1st. They are at all times exempted from question elsewhere for anything said in their own House during the time of privilege. 2d. Neither a member himself, his wife or servants, for any matter of their own, may be arrested on mesne process, in any civil suit. 3d. Nor be detained under execution, though levied before the time of privilege. 4th. Nor impleaded, cited or subpoenaed in any court. 5th. Nor summoned as a witness or juror. 6th. Nor may their lands or goods be distrained. 7th. Nor their persons assaulted or character traduced.' (1 Blackstone, 163-4.)

"Mr. Thomas Jefferson, in his note upon this quotation of Blackstone, says: 'The Constitution of the United States has only privileged Senators and Representatives themselves from the single act of arrest in all cases except treason, felony and breach of the

peace, during their attendance at the session of their respective Houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either House.'

"Under the general authority to make all laws necessary and proper for carrying into execution the powers given them, they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege.' He goes on and says further: 'The act of arrest is void, ab initio. (2 Strabo, 989.) The member arrested may be discharged on motion. The arrest, being unlawful, is a trespass for which the officer and others concerned are liable to action or indictment in the ordinary courts of justice, as in other cases of unauthorized arrest. The court before which the process is returnable, is bound to act as in other cases of unauthorized proceeding, and liable also, as in other similar cases, to have its proceedings stayed or corrected.' He says further: "This privilege from arrest, privileges of course against all process, the disobedience to which is punishable by an attachment of the person (the very case in point), as a subpoena ad respondendum or testificandum or a summons on a jury; and with reason, because a member has superior duties to perform in another place.' He goes on to say: 'When a Representative is withdrawn from his seat by summons, the people whom he represents, lose their voice in the debate and vote, as they do in his voluntary absence. When a Senator is withdrawn by summons, his State loses half its voice in debate and vote, as it does in his voluntary absence. The enormous disparity of evil admits of no comparison.'

"In December, 1795, the House of Representatives of the United States, committed two persons of the names of Randall and Whitney, for attempting to corrupt the integrity of certain members, which they considered as a contempt and breach of the privilege of the House; and the facts being proved, Whitney was detained in confinement a fortnight and Randall three weeks, and was reprimanded by the Speaker. The editor of the Aurora, of Philadelphia, William Duane, was, for defamatory articles, declared to be guilty of breach of the privilege of the Senate.

"In the debate in the Duane case, Mr. Senator Pinckney, who opposed the proceedings, after citing the privileges of Congress, says that each House has power to enforce complete order and decorum within their own chamber; to clear the galleries if an audience is unruly, and to punish their own members; to take care that no arrests except for treason, felony or breach of the peace, shall keep their members from their duty. There can be no doubt but that the Legislature of the State of New York has as extensive if not more extensive privileges than the Congress of the United States. It is the successor of the colonial Legislature which derived its privileges from the parliamentary law of England, and is not restricted in its privileges by the Constitution of the State. Mr. Pinckney, in the speech quoted above, seemed to intimate that the privileges of State Legislatures were more in their discretion than those of Congress.

"The Constitution of this State of 1777, declares that the Assembly should enjoy the same privileges and

do business in like manner as the Assembly of the colony of New York of right formerly did.

"It is admitted that the Parliament of England, and the courts of law, have cognizance of contempt, and are authorized to punish for such contempts. It is also admitted that the State Legislatures have equal authority, because their powers are plenary; they represent their constitutents completely, and possess all their powers, except such as their constitutions have expressly denied them; that Congress has no natural or necessary power, nor any powers, but such as are given to it by the Constitution. Therefore, the Constitution expressly and directly exempts members of Congress from personal arrest, and, therefore, with Congress no further law is necessary, the Constitution itself being the law; still under the provision of the Constitution, which confers upon Congress the right to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in them, it would be within their power to establish any regulation of law in regard to the breach of their privilege, which they might desire. It is laid down by parliamentary writers that, even in cases of treason, felony and breach of the peace, to which privilege does not extend, as to substance, yet in Parliament a member is privileged as to the mode of proceeding. The case is first to be laid before the House, that it may judge of the fact and of the grounds of the accusation, and how far forth the manner of the trial may concern their privilege. Otherwise it would be in the power of other branches of the government, and even of every private person, under a pretence of a charge of treason, felony and breach of the peace, to take any man from his service in the House, and so as many, one after another, as would make the House what he desired it should be.'

"The rule in this country has not been carried to this extent, but the ruling is well established that, where any body desires the appearance of a member of the Legislature, or of Congress, as a witness, or in any other manner, first the permission of the House of which he is a member is asked, and then the question is before the House, whether they will or will not grant permission to the member to attend before any court or other House of Parliament. The Senate of the State of New York has no right to summon within its presence, or before any committee of that body, any member of the Assembly, without first, in due and courteous form, asking permission of the Assembly that such member may be summoned. If then, the Senate of the State has no such power, can it, in reason be contended, that a court, an inferior body, and, to a great extent, under the direction and control of the Legislature, shall have the power to subpœna, at its will, a member of either House of the Legislature and take him from his duties as a representative of the people? Your committee are of the opinion that no such doctrine can be maintained upon any well settled and grounded principles of parliamentary law, as applicable either to the Parliament of England, or to any legislative bodies in this country, and your committee can readily see the great danger to which such assumption of power on the part of the courts would inevitably lead.

"Your committee have examined, with great care, the instances of breaches of privilege of the Congress of the United States, the first parliamentary body in this country, and they find but few instances where the privileges of either House of Congress have been violated. On the 22d of June, 1822, it seems that an assistant doorkeeper of the Senate of the United States had been subpoenaed to appear before a committee of the House of Representatives, when Mr. Senator Holmes, from the State of Maine, offered a resolution that said assistant doorkeeper be permitted to attend as such witness. During the debate on the resolution, Mr. Foote, a Senator from Connecticut, used the following language: "That as the officers of the Senate were not subject to be taken from their duties by the process of any court, so neither could a doorkeeper, by any process from the other House, be taken from his duties." It was conceded that the doorkeeper was only required to attend before the committee during the recess of the Senate, and therefore the discussion ceased. This statement by Senator Foote seems to show the fact to be, that up to that time, there was no question but what members of Congress and the officers thereof, were exempt from obeying any writ of subpoena, whether issued by a court or by either House of Congress. Your committee have found two English cases in their researches, which would in the least question the principles they believe govern questions of this character. The one is the case reported in 1 Saukeld, 279, Dominux Rex v. Dominux Preston. There Lord Preston had been committed by the Court of Quarter Sessions for refusing to appear and testify before the grand jury in a case of high treason. He was brought before the Court of King's Bench on a writ of habeas corpus, when Lord Holt used the dictum that it was a great outrage, and had he been present at the commital he would have imposed a fine. It does not appear that Lord Preston was even a member of Parliament, or that Parliament was in session at the time, nor does it appear that he pleaded his privilege either as a member of Parliament or as a peer of the realm. And under the English rule, as your committee understands it, had Parliament not been in session, and had the time of exemption after the session of Parliament expired, then Lord Preston would not have been exempt from testifying before the grand jury in a case of high treason. The next is the case of Lord Ferrers, which occurred in 1757. An attachment issued against Lord Ferrers out of the Court of Westminster Hall for refusing to obey a writ of habeas corpus which had been issued, requiring him to produce in the Court of Westminster Hall the body of Lady Ferrers, she alleging by prayer addressed to the chief justice, that the conduct of her husband was so harsh, tyrannical and abusive, and so endangered her peace of mind and her life, that she required to be present at the court to present her petition, and ask its protection. In that case it was a refusal to obey a writ of habeas corpus, where the party who was required to obey such writ had, as appeared to the court, been guilty of a breach of the peace, to wit: Physical abuse to Lady Ferrers. Under these circumstances the House of Lords passed the following resolutions:

"It is hereby ordered and declared that no peer or

lord of Parliament hath privilege against being compelled by process of the courts of Westminster Hall, to pay obedience to a writ of habeas corpus directed to him.' The writ of habeas corpus requires not the presence of the member himself, but the production of some person alleged to be in his custody or under his control, and therefore can be complied with without the necessity of the member being absent from his duties upon the House of which he may be a member, and is very different from arrest under a process issued out of court which actually takes the body of the member, and therefore takes him from his duties in the House to which he has been elected.

"The people of the State of New York very early took into consideration this question of privilege; and the Legislature, as far back as the 20th of February, 1788, passed the following statute:

"Every member of the Legislature shall be privileged from arrest on civil process during his attendance at the session of the House to which he shall belong, except on process issued in any suit brought against him for any forfeiture, misdemeanor or breach of trust in any office or place of public trust held by him.' (Laws of 1788; 1st ed. of Revised Statutes, vol. 1, p. 154.)

"This qualification would indicate that in all other cases the member was absolutely exempt from arrest. "The gentlemen who appeared before the committee seemed to press very strongly the idea that an attachment was not a civil process. There can be no question but what the subpoena issued in this case was a civil process, and, under the authorities above cited, void ab initio. Therefore your committee cannot see by what force of reasoning an attachment issued against a person for non-compliance with a summons of subpœna can be tortured into a criminal process. In other words, your committee are of the opinion that the proceedings are void from the beginning, and that no legal process can be founded upon one which was void of itself. If a member was privileged from attending on the summons of a grand jury in the first place, his refusal was no contempt of the court out of which such process issued, for he had committed no offense. He had simply availed himself of a right which the statute of the State and parliamentary law gave him; and your committee is of opinion that it is a novel doctrine, dangerous in itself, that a person availing himself of the privilege granted to him by the laws and Constitution of the land, becomes guilty of a crime and is liable to arrest for the exercise of the privilege thus conferred upon him. The distinguished judge himself admitted the danger to which the construction of the statute, which he seemed to desire to press upon the committee, would lead, and it needs no argument to show how dangerous it would be if such a course were allowed to be pursued. There are sixty-two counties in this State. There are sixty-two grand juries sitting, many of them during the session of the Legislature. Suppose it established that a member is liable to arrest for disobeying a summons to appear before a grand jury. How easy would it be for designing men to thus deprive the House of members to an extent sufficient to embarrass its business; or again, for designing persons to change the political complexion of the House from

one party to another, by getting up fictitious charges before a grand jury, and issuing subpoenas to members, and on their non-compliance, issuing attachments, and causing their arrest and transportation to the different shire towns of the counties. Your committee deem it not necessary to follow this line of argument. The mere statement of it is sufficient to show how dangerous such a rule would be.

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Finally, your committee, in full view of the facts, and after a full consideration of the law and precedent governing cases of this kind, have come to the conclusion that the arrest of the Hon. Henry Ray, on January 21, 1870, a member of the Assembly from the first district of the county of Ontario, on an attachment issuing out of the court of Oyer and Terminer, then being held in the county of Saratoga, of which the Hon. Platt Potter was presiding justice, was a high breach of the privileges of this House by said Potter, and deserves the censure of this House; and your committee are further of the opinion, that W. B. French, in causing the issuing of such attachment, was guilty of a high breach of the privileges of this House, and that the said Windsor B. French, district attorney as aforesaid, deserves the censure of this House. Your committee are also of the opinion, that the arrest of Henry Ray, in the city and county of Albany, by Mr. Elisha D. Benedict, a deputy sheriff of the county of Saratoga, was a high breach of the privileges of this House, and that said officer deserves the censure of this House."

Thereupon a series of resolutions were passed that the Hon. Platt Potter, Windsor B. French, district attorney of the county of Saratoga, and Elisha B. Benedict, the officer who executed the writ, be summoned to appear before the bar of the House for a high breach of its privilege.

In pursuance of such resolutions these gentlemen appeared at the bar of the House at noon on Wednesday last. Mr. Justice Potter, being asked to render❘ his excuse for the breach of privilege, requested to be heard by counsel, which request was denied. Thereupon he proceeded to read a very carefully prepared and able argument defending the course he had pursued. He began by denying the right of the House to summon before its bar a judge of the Supreme Court to answer for a judicial act, and stated that he appeared not in obedience to their mandate, but out of courtesy to their honorable body, and he proceeded to show, first, that the Supreme Court was coordinate with the Legislature, and that one branch of the government could not summon before it, or subject to censure, a co-ordinate branch; second, that the attachment for contempt was not a civil process, and therefore not covered by the privilege of the House. The argument of the learned judge was very elaborate, and was listened to with much attention by the members. After considerable discussion a motion was passed censuring Mr. Justice Potter, but expressing the opinion that he had acted conscientiously and without intent to violate the privilege of the House.

While we fully coincide with the views of the committee as to the privilege of the House, and as to the necessity of maintaining that privilege, yet we fail to discover any thing in their report or in the proceeding

that can justify the censuring of Mr. Justice Potter. The committee were in error in supposing that the only question to be determined was that of privilege. There never was any question about that. The exemption of members of legislative bodies from arrest on civil process, has been an established fact for centuries, and is expressly provided by statute. The most important question for them to have determined was as to who was properly censurable for the violation of that privilege. We are very clear that the court could in no wise be charged with dereliction. It does not appear that it was in any manner brought to the knowledge of the court that Mr. Ray was a member of the Assembly, and Justice Potter himself claimed before the committee, that the writ was issued by him without a knowledge of that fact. This may very well be, for there is nothing that would require the fact to be set forth in the application for an attachment. The judge had an undoubted right to rely on the papers and evidence before him, and was in no wise bound to make outside investigation as to the status of the delinquent witness.

We do not discover any difference between this case and one where a member is arrested on an order of arrest granted in a civil action. The privilege of a member arises simply from his temporary condition. An expulsion from the House, or an adjournment, strips him of that privilege, and he may be arrested the same as any other person. Now, suppose that, instead of issuing an attachment, Justice Potter had granted an order of arrest against Mr. Ray, and that the day following the granting of such order the Legislature had adjourned, and Mr. Ray had returned home and been there arrested on such order. It would not be for a moment claimed that Mr. Justice Potter had been guilty of a breach of the privilege of the House, in granting such order. But if it were a breach of that privilege on his part, that breach occurred, and he became liable to censure, upon the instant of granting the order, so that the subsequent adjournment could not in the least affect the question. If therefore it is no breach of the privilege, on the part of the Justice, to grant an order of arrest against a member during the session of the Legislature, which order is not served until after the adjournment of that body, it is no more a breach to grant an order which is served during such session. We take it that the breach of privilege does not occur in granting an order, but in serving it; and that only those implicated in the arrest are guilty. When Mr. Ray pleaded his privilege to the sheriff who held the process, that officer was bound to satisfy himself as to its correctness, and, in making the arrest, acted at his peril. There is nothing in the report of the committee, or in the authorities cited by them, that in any manner elucidates this question.

They should have found whether or not a judge, in granting an attachment, or a mesne process, is bound to satisfy himself as to the condition of the party affected. If he is not, we fail to discover by what logic he can be made amenable to censure. It may be that a court of justice is bound to take judicial cognizance of who are members of the Legislature, but the committee fail to find such to be the fact. There is not on the Bench of the State a more honor