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IND EX TO THE ECLECTIC MAGAZINE,-WO L. VIII.
A UGUST, 1846.
F France, Impressions of, by a Young Lady,
Tait's Magazine, - - - - 320
More, Sir Thomas, and Lord Bacon-Edin.
Marvels in Marine Natural History, . 549
Misc ELLANEous, British Opinion of Jona.
* 142.—Remarkable Feat in Metal Casting,
Select List of Recent Publications, 144, 288,
Spain, State of Political Parties in,_Foreign
Steppes of the Caspian, Travels in, For-
St. Bernard, The Great, - Metropolitan, . 444
From the Edinburgh Roview.
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.]
I. 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 # decision of the House of Lords. July, 1845.
The proceedings of both Houses of Parliament above referred to, show that persons Wol. 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, by petition of the party sued, that such action had been brought, sent for the plaintiff and his attorney, and, by direct menaces, compelled them to stay their actions, and so far submit to the imputations which the evidence had brought upon them. This was said to be done in exercise of Privilege of Parliament. The fact cannot fail to awaken the most serious reflections in all constitutional minds. To interpose the authority of either House between any one of the Queen's subjects and the remedy which the law may give him against another for an invasion of his personal rights, would appear to be a most questionable practice; yet the step was taken by the House of Commons almost as a matter of course; in a thin house, towards the close of a session, with scarcely the 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 adopt it till a committee had examined and reported on the precedents connected with the subject. Their report will be noticed hereafter. The cause of alarm is greater from the powerful opposition offered to the vote by Lord Brougham, whose speech is before us. We much regret that the arguments by which he was answered, have not been also published with the authority of those who advanced them. 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. 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 according to the rules of any known law, but at the mere will and pleasure of a majority in either House of Parliament. 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
be reconciled, and were protected by its various clauses, reluctantly submitted to, by reason of the opposing influences. Without mutual sacrifices, the bill must have been thrown out. The battle was obstinately sought, but has been lost; or rather the law is the fruit of negotiation and compromise. The law has settled the question. but what if, afterwards, either of the extinguished interests should be patronized by Privilege 7 What if either House should resolve that the subject-matter was of its own exclusive cognizance 1 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 1 That the judges, who, in the execution of their duty dared to decide on the point, should share their sate 2 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 second objection is, that if this court cannot judge of the commitments of the House of Commons, and such a commitment is 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. We do not propose to discuss the question whether arbitrary power can be safely
trusted to a popular assembly, subject to so many influences from within and from without. But we propose briefly to meet the argument by the fact—the argument that no danger of abuse needs be feared, by the fact that it has frequently occurred. For this purpose we shall exhibit a list of cases, in which the English House of Commons,” acting on a claim of Privilege, sometimes allowed by law and public opinion, and sometimes condemned, has grossly perverted the privilege, as claimed by themselves: a set of precedents to be eschewed: a beadroll of decisions which no honest or rational men could uphold: a series of facts disgraceful to our country, in which the people'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. Thorpe's case was in the reign of Edward IV., in which Parliament consulted the judges on the course they ought to take upon the arrest of their own Speaker; but the jndges, with many professions of the most profound respect, declared that that great assembly was the best and sole judge of its 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.
always profligate and unjust in the greatest possible degree. During all Richard II.'s reign, all Henry VI's, all Edward IV.'s, and Richard III.'s, up to the accession of Henry VII., they blindly followed the dictates of the faction which had the upper hand—the prince whose success in the field had defeated his competitors, the powerful chief whose authority prevailed at the moment. The history of their proceedings is a succession of contrary decisions on the same question, conflicting laws on the same title, attainders and reversals, con signing one day all the adherents of one party to confiscation and the scaffold, reinstating them the next, and placing their adversaries in the same cruel predicament. Thus, in 1461, on Edward IV.'s victory, they unanimously attainted Henry VI., and all his adherents, including 138 knights, priests, and esquires, as well as princes and peers, and declared all the 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 months wearing the crown, which he had been offered by many of the Lords and some citi-" zens and gentlemen, but by neither house of the legislature, found it quite safe to assemble a Parliament, which at once recognized his incurable title, and attainted all his adversaries. When the Earl of Richmond defeated and killed him at Bosworth, and took the crown -offered him by the soldiers on the field of bat: tle, 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.)