It was then moved that Mr. W.S.  O’Brien be given up to the Sergeant-at-Arms.  Mr. Ward moved the postponement of the motion to Thursday, the 30th of April; the Premier agreed, and it was accordingly postponed.  Smith O’Brien, remaining fixed in his determination, was on that day taken into custody by Sir Wm. Gossett, the Sergeant-at-Arms, and lodged in prison.  After being twenty-five days there, Mr. Frederick Shaw made a motion for his release, without, he said, having consulted him, and in fact believing such motion to be contrary to his wishes.  It was made on the ground that he had been sufficiently punished by twenty-five days’ imprisonment.  It was carried nem con, that he be released, “on paying his fees.”

Although several of the leading Irish Liberal members sustained Smith O’Brien on this occasion, they did not approve of his persisting in his refusal to serve on the Committee, as there was no principle vindicated by his persistence or his imprisonment; his first refusal and the discussion upon it having effected all that could be usefully done in the case.

Whilst Smith O’Brien was yet in prison, the following case was submitted to Mr. Anstey on his behalf: 

“1.  Whether there is any, and what inherent power or privilege in the House of Commons to imprison its members for constructive contempt of its authority?

“2.  Whether there is any and what prescriptive power or privilege in said House to imprison its members for such contempt?

“3.  Whether the refusal to serve on the Committee in question can be construed into a contempt of the authority of the house?

“4.  Whether, assuming the commitment or detainer to have been unlawful, Mr. Smith O’Brien has any and what legal remedy, and against whom?

“5.  Whether the House of Commons has any, and what right, to insist on his paying into the fee fund of the House any, and what fees—­either by way of preliminary condition to his discharge out of the custody of the Sergeant-at-Arms or otherwise?”

Mr. Anstey’s opinion was in the following terms: 

“I am of opinion that the commitment and imprisonment of Mr. Smith O’Brien, by order of the House of Commons for the constructive contempt set forth in the vote and proceedings of the House, and the other papers which have been laid before me, are, in every respect, illegal.  The House, in my opinion, has no power to enforce its orders by any such penalty, except under the authority of the statute or common law, and no such authority can be shown to justify the commitment and imprisonment complained of.  I am further of opinion that, even supposing the House to possess such authority, still the informality of the proceedings in the present case has been such as to vitiate them ab initio, and to render null and void everything that has been done under the colour of such authority.”