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From the Edinburgh Review.
THE QUESTION OF PRIVILEGE.

[The following eloquent and manly defence of liberty has been imputed to the pen of Lord Chief Justice Denman. Though specially designed to rebuke an encroachment upon popular rights which does not exist here, its noble principles and fervid arguments will find a response in every free heart.-ED.]

1. Minutes of the Proceedings of the House
of Commons, July 5, 1845.

2. Minutes of the Proceedings of the House
of Commons, Aug. 5, 1845.
3. Minutes of the Proceedings of the House
of Lords, July 10, 1845.
4. Report from the Select Committee (of the
House of Lords) appointed to search for
Precedents in reference to the Petition of
Thomas Baker for protection.
5. Minutes of the Proceedings of the House
of Lords, 10th and 14th of July, 1845.
6. Lord Brougham's Speech on Privilege
of Parliament. With his Protest against
the decision of the House of Lords. July,
1845.

THE proceedings of both Houses of Parliament above referred to, show that persons VOL. VIII.-No. I.

37

who conceived themselves injured by false evidence, given against them behind their backs, to Committees of either House, brought actions for the purpose of vindicating their character from the slander; and that each House, on being informed, tion had been brought, sent for the plaintiff by petition of the party sued, that such acand his attorney, and, by direct menaces, compelled them to stay their actions, and so far submit to the imputations which the was said to be done in exercise of Privilege evidence had brought upon them. This of Parliament.

The fact cannot fail to awaken the most serious reflections in all constitutional

minds. To interpose the authority of either subjects and the remedy which the law may House between any one of the Queen's give him against another for an invasion of his personal rights, would appear to be a was taken by the House of Commons almost most questionable practice; yet the step wards the close of a session, with scarcely as a matter of course; in a thin house, tothe form of a debate, and without any division. This vote of the Commons became a precedent for a similar vote, on a similar occasion, in the Lords. The greatest judicial body in the empire was strongly warn

ed against the proceeding; they did not be reconciled, and were protected by its adopt it till a committee had examined and various clauses, reluctantly submitted to, reported on the precedents connected with by reason of the opposing influences. Withthe subject. Their report will be noticed out mutual sacrifices, the bill must have hereafter. The cause of alarm is greater been thrown out. The battle was obstifrom the powerful opposition offered to the nately fought, but has been lost; or rather vote by Lord Brougham, whose speech is the law is the fruit of negotiation and combefore us. We much regret that the argu- promise. The law has settled the question. ments by which he was answered, have not but what if, afterwards, either of the extinbeen also published with the authority of guished interests should be patronized by those who advanced them. Privilege? What if either House should resolve that the subject-matter was of its own exclusive cognizance? That the construction of acts relating to it, or of all such clauses, or of all railway acts, belonged solely to its jurisdiction? That if any suitor proceeded to enforce the right given him by the law, he and his counsel and attorneys should be sent to prison? That the judges, who, in the execution of their duty dared to decide on the point, should share their fate?

His Lordship's Protest does not allude to any formidable resistance by argument from the supporters of the vote; and we think that he is likely not to have passed over in silence any strong point in the pleading of his adversaries. We have some reason to think that many of those who had concurred in the resolution, were of opinion, too late, that they had done wrong; not only in proceeding so hastily in a matter so important, but in arriving at the conclusion which was adopted. At all events, we are satisfied that public opinion must be directed by this valuable document to the imminent and extreme danger to which important rights and interests stand exposed.

The advocates of Privilege will condemn the very supposition as monstrous. They admit that such a course would be wrong, and for that reason could not be taken.. This is not what they wished or intended, nor any thing at all resembling this. They only wished, modest and considerate as they are, to set up an arbitrary, unlimited, uncontrollable power. Hear what was said by one of these grave judicial organs, whose encouraging and reiterated dicta were the food on which these swelling pretensions fed. In the reign of Queen Anne, Mr. Justice Powys, differing from the ChiefJustice, as his other two brethren also did, thus deals with one of the objections to the warrant issued by the House of Commons for the imprisonment of John Paty.

The

For the truth can no longer be veiled from sight by mysterious generalities; we are distinctly warned-should we not rather say threatened? Members of Parliament, in both its chambers, high in office and eminent in station, conspicuous for talent, distinguished in those professions which exercise most influence over the community—men differing in all political opinions, and connected with every party-have for the first time united their voices in maintaining this proposition, that Englishmen are hereafter to enjoy their liberties, their properties, and their reputation, not accord-second objection is, that if this court cannot ing to the rules of any known law, but at judge of the commitments of the House the mere will and pleasure of a majority in of Commons, and such a commitment is either House of Parliament. good, they may stop the whole course of law, and take upon them a despotic power. But this is a very foreign supposition, and ought not to be said by any Englishman. The House of Commons are a great branch of the constitution, and are chose by ourselves, and are our trustees; and it cannot be supposed, nor ought to be presumed, that they will exceed their bounds, or do any thing amiss.' And such language has been employed during the late controversy. Do not be so uncharitable as to fancy that we shall abuse an arbitrary power: we want nothing but the use of it.

This proposition was certainly deducible as an inevitable corollary from the assertion of Privilege formerly put forth; since he who claims the right of sole judgment on the extent of his own privileges, and to declare them without appeal in each particular juncture, virtually claims authority to silence all tribunals and supersede all law. But this was reasoning and inference. The most apprehensive little expected to hear the principle boldly avowed, and to behold it in active eperation.

Let us suppose a possible case under circumstances of daily occurrence. A new law has passed; adverse interests were to

We do not propose to discuss the question whether arbitrary power can be safely

the

trusted to a popular assembly, subject to so always profligate and unjust in the greatest many influences from within and from with- possible degree. During all Richard II.'s out. But we propose briefly to meet the reign, all Henry VI's, all Edward IV.'s, and Richard III.'s, up to the accession of Henry argument by the fact-the argument that no danger of abuse needs be feared, by the faction which had the upper hand-the prince VII., they blindly followed the dictates of the fact that it has frequently occurred. For whose success in the field had defeated his this purpose we shall exhibit a list of cases, competitors, the powerful chief whose authority in which the English House of Commons,* prevailed at the moment. The history of their acting on a claim of Privilege, sometimes proceedings is a succession of contrary deciallowed by law and public opinion, and sions on the same question, conflicting laws on sometimes condemned, has grossly pervert- signing one day all the adherents of one party same title, attainders and reversals, con ed the privilege, as claimed by themselves: to confiscation and the scaffold, reinstating a set of precedents to be eschewed: a bead-them the next, and placing their adversaries roll of decisions which no honest or rational in the same cruel predicament. Thus, in 1461, men could uphold: a series of facts dis-on Edward IV.'s victory, they unanimously graceful to our country, in which the peo- attainted Henry VI., and all his adherents, inple's own trustees, chosen by themselves, have assumed a despotic power; and against the presumption above prescribed by the reverend Judge, have exceeded their bounds, have done every thing amiss, have trampled deliberately upon the first principles of justice. We speak of times anterior to August 1841, when the present Parliament was called into existence.

of its

well as princes and peers, and declared all the cluding 138 knights, priests, and esquires, as Lancastrian princes usurpers. A few years after, both Edward IV. and Henry VI. were actually prisoners at one and the same time. The next year, Edward, who had not regained his freedom and his crown for many months, was fain to fly the realm, when all his adherents were attainted without exception. Richard III., notwithstanding the unusual horror excited by his manifold crimes, after a few Thorpe's case was in the reign of Ed-months wearing the crown, which he had been ward IV., in which Parliament consulted the offered by many of the Lords and some citijudges on the course they ought to take zens and gentlemen, but by neither house of upon the arrest of their own Speaker; but the legislature, found it quite safe to assemble a the judges, with many professions of the Parliament, which at once recognized his incumost profound respect, declared that that When the Earl of Richmond defeated and rable title, and attainted all his adversaries. great assembly was the best and sole judge killed him at Bosworth, and took the crown offered him by the soldiers on the field of battle, the Parliament immediately reversed all the attainders of the Lancastrians, and declared the princes of that house to have been lawfully seized of the crown. Nay, the Commons settled tonnage and poundage on him for life. They, however, added, as a kind of condition, in which the Lords concurred, and to which he assented, that he should strengthen his confessedly bad title to the crown by marrying Elizabeth, the representative of the York family. At the same time, partly as a means of finance, somewhat inconsistently with their opinion of the York title, they attainted, that is, confiscated, thirty of the York party, on the unreasonable and indeed unintelligible ground of having been in rebellion against Henry when he was only a private gentleman, Earl of Richmond. But it is to be observed that the statute limiting the crown to Henry and the heirs of his body, was made by the assent of the Lords at the request of the Commons.'-(Vol. iii. p. 248.)

own privileges. That case may be safely left to the commentaries of Lord Holt, and to the following description of the Parliaments of that time, as given by Lord Brougham, in his Political Philosophy.

'The conduct of the Parliament, both Lords and Commons, in the times of which we have been treating, was as bad as possible in all particulars save what related to their own privileges. The nation can never be sufficiently grateful for the steadiness with which they then persisted in establishing their legislative rights, and their title to interfere in the administration of public affairs. But their whole conduct towards individuals and parties, the use they made of their power, was almost

*This observation is confined to England. In Ireland, it is well known that the House of Commons, in the 18th century, came to a vote that any clergyman claiming agistment tithe was a traitor and enemy to his country, and to the Protestant interest. They acted on this vote: and clergymen were severely punished for claiming a property as indisputably their own, as the land that may have been vested in a railway company, by an act which received the royal assent last August, belongs to that company; or the rimonial estates of peers and members of Parlia ment, to their hereditary owners.

pat

From these unsettled times let us pass to the 17th century. Edward Floyd, in 1621, a justice of peace, and a gentleman of good estate in Salop, was impeached, before the Commons, for uttering uncivil speeches towards the Prince and Princess Palatine,

the son-in-law and daughter of King James | stitutional contest, abhorrence of the judiI. His crime consisted in saying I have cial misconduct of Jefferies and Scroggs heard that Prague is taken, and Goodman had been coupled with the wish that their Palsgrave and Goodwife Palsgrave have very names might be blotted out from the taken to their heels and ran away; and, as memory of man, Erskine exclaimed,—' No! I have heard, Goodwife Palsgrave is taken let them be held in everlasting rememprisoner;' and that these words were spoken brance! let them be handed down with shame in a most despiteful and scornful manner, and execration to the end of time !'-So let with a sneering and scoffing countenance, this hideous story of the sufferings of Edand with a purpose to disgrace, as much ward Floyd be studied as an awful and as in him lay, these two princes;' and the practical lesson! A lesson to the commulike at other times. Claiming the privilege nity, showing every individual to what he of punishing by pillory and fine, on what may be exposed by the claims of arbitrary they called impeachment, that is, an im- power;— -a still more affecting lesson to the peachment by themselves as accusers be- humane, the just, the enlightened, of the fore themselves as judges, the Commons excesses of guilt and infamy into which passed a sentence, calculated to efface all they may be plunged by asserting such a memory of those misdeeds of the Star- claim. For here was no unwatched drunkChamber and High Commission Court, en rabble, no sudden impulse of excited which soon after brought about the Civil savages: we have the recorded deliberation Wars. Their resolution was, that Floyd's and the public conduct of the knights, citbody should be scourged, tortured, mutilat-izens, and burgesses; and finally of the ed, his feelings insulted, and his estate bur- brave peers of England, the most cultivated dened with a fine of £1000. part of a highly civilized nation-the That the affair, between judgment and statesmen, the lawyers, the land owners and execution, was wrested out of the hands of merchants-the peers and prelates of a the House of Commons, and subsequently country long renowned in arts and arms, disposed of by the Lords, who maintained the contemporary admirers of Shakspeare with some heat that this sentence was a and Bacon, the patrons of Milton and Waldeep infringement of their privileges, only aggravates the enormity. The Commons humbly deferred to this claim: the sole judges of their own privileges confessed that they had volunteered the exercise of ty. power which they did not possess. They The reign of Charles I. gives cause for however entreated their Lordships, that so much reflection on the subject of Privilege, heinous an offence might not escape con- The Long Parliament met in 1640, and dign punishment; and the Upper House, passed many valuable laws. The abolition profiting by the example of the Lower, of the Star-Chamber, and High Commission catching the infection of their Protestant Court, and of the right of the Privy Counzeal and loyal indignation, pronounced a cil to try criminal matters, is enumerated still severer sentence. Their Lordships, to by Lord Brougham among the 'great and the pillory and exposure, added a whipping glorious achievements of this renowned at the cart's-tail. Some scrupulous peers, body." 1* But he censures all their subsea small minority, would have excused him quent proceedings, as framed, and possithe whipping, because Floyd was a gentle-bly intended to alter the form of governman: none appear to have thought this cir- ment.' Nor can any man deny that some cumstance any objection to nailing his ears of their claims of Privilege were absurd— to the pillory, or parading him through as the vote that Archbishop Laud's church London and Westminster on horseback, ceremonies were a breach of the privileges with a placard on his back, and with his face towards the beast's tail. Their Lordships multiplied the fine fivefold, declared him infamous and incompetent to be a witness, and directed him to be imprisoned for the term of his life. He was not, however, in fact, whipped, though in all other particut The Long Parliament had become executive as well as legislative, when it performed some lars the sentence was rigidly enforced. of its boldest operations,-such as condemning When, in the course of some great con-Paul Best to death for denying the Trinity. He

ler;-all the leading men in a wealthy and powerful country, which even then boasted that it had enjoyed for hundreds of years the inestimable blessings of law and liber

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of the House of Commons; some treasonable as the votes to levy an army against the King-if the constitution was considered as resting on its lawful basis.t

*Pol. Phil. Vol, iii. p. 276.

The defence of the Long Parliament is, | thing prove it more strongly, than that the that the King's violations of the law had House of Commons elected in 1679 prothrown the constitution off its bias, and ceeded, almost immediately on their meetproved his determination to rule independ-ing, to punish their fellow-subjects who had ent of all its checks and controls. If they exercised their undoubted right of petitionwere justified in foro conscientiæ for their ing the Crown on the exercise of an imresistance to this overstrained usurpation, portant and equally unquestioned prerogaunder the name of prerogative, by opposing tive, that of summoning a Parliament? to it the only power they possessed-or Such petitions were visited as a breach of rather by setting up a power never used the privileges of that House of Commons, before, and investing it with the venerable and well-known name of Privilege-their proceedings with that object can furnish no argument for the extent of power which the laws and constitution will recognize in peaceful times.

which had no existence when they were preferred. That our trustees, elected by ourselves, of whom no Englishman ought to say that it is possible for them to exercise a despotic power, or do any thing amiss,' should vote a petition to the Crown on public affairs a breach of privilege, appears like an incredible fable. Numerous, however, were the victims who could attest

them by the hundred, and detained them till they paid money for their liberation. The people's representatives lodged their constituents in jail, in the name of Privilege, for daring to express their opinion on the conduct of a former Parliament. The grand-jury of Devon were thus dealt with by the House of Commons in which a Whig majority bore sway.

Walpole speaks with rapturous admiration of Quin's answer to the question, By what law could they execute the King ?By all the law that he had left them.' The its truth. The sergeant-at-arms seized law of necessity, which supersedes all other; the law of self-defence, of which, however applied, the unjust aggressor has no right to complain. In the commencement of those troubles, if the Commons could avert arbitrary power by no other means than the pretence of Privilege--if that weapon, non hos quæsitum munus in usus, was the only one they had power to grasp-Pym and Hampden might be bound to wield it, however repugnant to the elemental constitution of a mixed government acting upon known laws; yet the shades of these great men have been preposterously invoked, as giving a sanction to interference with the administration of the laws, in the days of King William IV. and Queen Victoria. Rulers and subjects may draw lessons of public morality and expediency from these tumultuous periods; but they furnish no precedents that can be applied when the empire of the law is re-established. The establishment of that empire, secured by the independence of the judges, is perhaps the most legitimate object of those struggles, and the prize not too dearly bought by all the horrors that accompanied them. They had hardly ceased during the reign of Charles II., or, if it might be truly said that the storm had susided,

if the terror of the times was past, There still remain'd the scatterings of the blast.

The unsettled opinions of men, and the violent contention of parties, often shook the tranquillity of the state. Could any was executed by virtue of an ordinance in 1646, not under a vote for breach of privilege.

In 1701, the same drama was acted, but with the characters reversed. The grandjury of Kent ventured to approach the House of Commons with a strong remonstrance against the Tory government of Queen Anne, for deserting the policy of King William and his Whig ministers. For presenting this petition Mr. Colepeper was imprisoned till the end of the session! What must be said of these proceedings? Were they altogether an abuse? Did the House at those different periods assume a privilege which they did not possess-a privilege inconsistent with their primary duty, that of redressing the grievances of the people, which can be known by no other means so well as by their petition? Or did they but abuse the privilege of committing for contempt as a punishment for libels?

Of the inquisitorial functions of the House of Commons we hear much, and all Englishmen hear it with pride and satisfaction. These functions have been so exercised as to produce examples of signal benefit to the country: their existence is no mean security against flagrant misgovernment. Information must often have proceeded from polluted sources; but the House were not answerable for its truth, or the respectability of witnesses: they were

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