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Holt thought the action maintainable, while his three brethren held the contrary opinion—grounded on the notion that this was a question of Privilege which the House of Commons alone had power to decide. And it is certain that the House alone had power to decide who should occupy the seat, and, with a view to that result, whether the plaintiff had the right of voting. But the plaintiff contended that he had suffered wrong by the returning officer's rejection of his vote; and for this wrong the House of Commons never pretended that they could give him redress. An incongruity would indeed have appeared between the decision of the House of Commons and that of the Court of Queen's Bench; but this is no more than the conflict that frequently happens between two courts of law deciding any matter incidentally. It constantly occurred between two decisions of the House itself, when the same point arose in favor of the Minister's friend, and against him. The majority in the House of Commons, however, passed a resolution to the same effect as the judgment of the majority of the Court; they did not in the first instance threaten the plaintiff with their displeasure, and he brought his writ of error on that judgment. The House of Lords, after consulting all the judges, decided in favor of the Chief-Justice's opinion, and reversed the judgment of the majority of the Court; and another rejected elector, possessing the same right of voting, fortified by this, the highest legal authority, brought his action also against the returning officer for the same grievance. Now Privilege took the field. The House of Commons sent him and several others to Newgate for this exercise of a clearly legal right. He sued out his habeas corpus, but was remanded to prison by the same majority of the Court which had denied that legal right. He sued out a writ of error on this judgment of remand. What, then, was the resource of the chosen trustees of the people, quos magnum aliquid dubid pro libertate decebat;-those who had been pronounced but a few days before, by judicial authority, incapable of exceeding their bounds, or doing anything amiss? They actually stooped to present a humble address to the Crown, praying that this writ of error might be withheld, and the subject deprived of the benefit of a legal judgment on his right to personal freedom, secured by so many statutes, which
had made the habeas corpus, as was vainly hoped, the all-sufficient bulwark of that inestimable blessing. All the twelve judges being consulted, were of opinion that the writ of error lay in such a case; and ten of them (two others not differing, but only doubting) were clearly of opinion that it was grantable et debito justitiae, and could not be withheld; —a doctrine, by the way, without which the habeas corpus would be a word without meaning. Thus baffled, the House of Commons, with a pertinacity worthy of a better cause, had recourse to Privilege. They condemned Paty and others, and voted that the four counsel and two attorneys named in their several resolutions, ‘in pleading upon the return to the habeas corpus on behalf of the prisoners committed by this House, are guilty of a breach of the privileges of this House,’ and should be taken into custody. The lawyers produced to the Sergeant-at-arms a protection from the House of Lords,-assigning them to give legal assistance to their clients, and forbidding all Sergeants-at-arms to meddle with them. There is reason to believe that the Commons, with marvellous inconsistency, admitted the validity of this protection. The five suitors appear to have lain in jail till the end of the session; but this was speedily terminated by the Crown, which prorogued Parliament. Let it be stated that all these measures were strenuously resisted by the Whig party in the House of Coinmons;–the heir-apparent of the house of Cavendish taking a conspicuous part in the debate, ably supported by Cowper and King, future Chancellors, and by the popular name of that lawyer who is handed down to posterity with grotesque respectability, as having “never changed his principles or wig, Sir Joseph Jekyll, afterwards Master of the Rolls. The Lords on this occasion, as they have on many others, asserted the true principles of constitutional freedom. They found it necessary to declare, by a formal resolution, one of those elementary truths which, in ordinary circumstances, are too plain either to be questioned or asserted. “Neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known ways and custom of Parliament.' Again, ‘The deterring electors from prosecuting actions in the ordinary courts of law, and terrifying attorneys, solicitors, counsellors, and sergeantsat-law, from soliciting, prosecuting, and pleading in such cases, by voting their so doing to be a breach of privilege of the House of Commons, is a manifest assuming a power to control the law, to hinder the course of justice, and subject the property of Englishmen to the arbitrary votes of the House of Commons.” But the original object of a war so violent, which could only be just if necessary, and for which the Commons first took up arms, was not left to be secured by their all-sufficient Privilege. It was afterwards happily settled by Act of Parliament. How settled ! Instead of its being written in indelible characters in the great book of the English constitution, that the Commons only can judge on the subjects' vote at elections, and that an elector cannot sue the returning officer for refusing it, the Crown, the Lords, and the Commons, declared the very reverse; and gave the aggrieved elector a defined remedy for that acknowledged injury. In strict conformity with the principles of the common law, so ably maintained by Holt, as they had previously been taught by Hale, and were afterwards avowed by Willes, a Chief-Justice of almost equal reputation, the subject's right was established to do that freely at his own will and pleasure, which the House of Commons declared he could not do without a breach of their Privilege. The great lawyer last named distinctly repudiated all power in the House of Commons to make its voice heard in a court of law on that subject. “I declare for myself that I will never be bound by any determination of the House of Commons, against bringing an action at common law for a false or double return; and a party may proceed in Westminster Hall, notwithstanding any order of the House.” Some other abuses must be dealt with en masse. The protection of the servants of members of Parliament from arrest, had been recognized as a privilege from an early period; on the principle that their attendance on their masters ought not to be interrupted, while they were devoting their time to the service of the country. Though the reason could hardly be thought applicable during adjournments and prorogations, yet the privilege prevailed through the year, and during the existence of the Parliament. This most liberal allowance was pressed by abuse of the meanest kind
* Lords' Journals, Jan. 14, 1704.
to a boundless latitude. Many members raised an income by selling their protections to bankrupt traders; to needy debtors who could not, or to rich swindlers who would not, satisfy the just demands upon them. The practice appears to have been by no means uncommon, though Col. Wanklyn, when detected, was expelled the House for it in the reign of Charles II. The mere continuance, however, of the acknowledged privilege deserves the name of an abuse. No man could believe, in the eighteenth century, that the freedom from arrest of a member's servant was necessary, or at all conducive to the member's discharge of his parliamentary duty. Yet the exemption remained. The footman of a learned civilian was released, as a privileged man, by a vote of the House, from an imprisonment which he had incurred as the father of a bastard child. The privilege of members themselves to be exempt from all legal process, was equally established by the prevailing practice, and was equally unworthy of a civilized country. However indisputable a plaintiff's right, he could not safely attempt to enforce it against a member either by action at law or suit in equity. But, while the House resented all recourse to legal process against its members, the habit of deciding matters in their favor by a process of its own became inveterate. To assert a right of way over a member's land was punishable as a breach of privilege: those who fished in waters wherein a member claimed an exclusive right of fishing, were sent to prison for breach of privilege: to replevy cattle distrained by an honorable member, however unlawfully, was a breach of privilege. An attorney sent a bill of costs to his client, which the latter thought too high. He might have had it taxed by the officer of the court; but, being a member of Parliament, thought the shortest proceeding the best, and procured the incarceration of the unfortunate and unpaid solicitor for a breach of privilege. There is something remarkable in the inconsistency displayed by different parliaments, and their varying views of their own power;-now enthroning it aloft, now contentedly placing it in the humblest position. Some instances have already been alluded to; but there was one privilege of the highest value, which few would deny to be essential to the functions of Parliament— the exemption from personal arrest. In civil actions, when the law was such that any one might restrain the liberty of any other by an affidavit, the inconvenience that might probably result to a just creditor from the release of his debtor in a particular instance, could not be weighed against the public mischief of exposing every obnoxious member to arrest. The law has ever regarded this privilege as sacred. In criminal cases, where the trial and conviction of guilty men is a paramount object, but the guilt can, in the first instance, only be suspected and charged, a practical difficulty arises, which, however, law and privilege, through the mediation of common sense, and with the sanction of time, had well overcome. It was perfectly understood that members might be apprehended on a regular charge of treason, felony, or breach of the peace, AND IN No other cases. During many years of the reign of George the Third, the domestic history of England is almost monopolized by the achievements of a restless and factious jobber, warring against an unpopular court and ministry; and their efforts to overwhelm him. The privilege of both Houses was exerted in this warfare. Having been imprisoned by a warrant of the secretary of state, not for treason, or felony, or a breach of the peace, but on an unproved charge of libel, John Wilkes sued out his habeas corpus in the Court of Common Pleas, and was by that Court restored to his liberty; by virtue of his privilege as a member of Parliament. That privilege was allowed by Lord Camden and his brother judges, as a known part of the law of England. But no sooner did the minister find it convenient to remove an obnoxious member, than the obsequious and self. denying, majority in derogation of their own privilege as it had always been understood, came to the resolution—“That privilege of Parliament does Not extend to the case of writing and publishing seditious libels; nor ought to be allowed to obstruct the ordinary course of the law in the speedy and effectual prosecution of so heinous an offence.” This resolution was placed upon the table of the House of Lords, and their lordships concurred in it. The great speech
in the debate was that of Lord Lyttleton." ‘Your Lordships will on no account depart from that marim, which is the cornerstone of all government, that Justice should have its course without stop or impediment. Jus, FAs, Lex, potentissim E sint. Obstruct this, and you open a door to all violence and confusion, to all iniquity, and to the cruelties of private revenge; to the destruction of private peace, the dissolution of public order; and, in the end, to an unlimited and despotic authority, which we must be forced to submit to as a remedy against such intolerable evils. The dominion of law is the dominion of liberty. Privilege AGAINst law in matters of high concernment to the public, is oppression, is tye ANNY, wherever IT Exists.” These general sentiments, so just and constitutional, and expressed with such servid eloquence, might have appeared, indeed, a little out of place as applied to a privilege which had been acknowledged to be lawful in a court of justice, and was founded on ancient practice, and on no slight reasoning. But mark the strange operations of this wonderful power of privilege Having a clear right of action against the two Secretaries of State, the Earls of Egremont and Halifax, for the illegal seizure of his papers under an illegal general warrant, Wilkes brought his suit against both; as well as against the messengers and inferior officers who had, by their orders, transgressed the law. Against these agents he recovered large damages; but when he was desirous of expediting his suit against the two noble peers, who were the real culprits, he found himself settered at every step by the privilege of peerage. This privilege interposed a check and impediment to all his movements. While they were listening to the admirable sentiments of Lord Lyttleton, and probably encouraging the orator with enthusiastic cheers, the two Earls determined to forego no means of obstruction which, as peers, they could raise. Privilege was like the seventh charmed bullet in Der Freischutz, and gave a fatal wound to that very justice of which all the noble lords were so much enomoured. These delays prevented the trial of either of the actions till one of them was defeated by Wilkes's outlawry, the other by the noble defendant's death;—an instructive fact properly preserved by Mr. Adolphus, on the same page which had just recorded the patriotic declamation of Lord Lyttleton against offering any impediment to the free action of the law. The House of Lords condemned another libel from the same pen as a breach of privilege. It was an indecent sarcasm on Warburton, Bishop of Gloucester, who, some years before, had published, with commentaries, the works of Pope. As an editor of that poet, and of one far greater poet, the right reverend prelate had achieved the pre-eminence of being the worst of commentators; but we must not permit ourselves to deviate into the bewitching details of literary anecdote. The complaint fell to the ground in consequence of Wilkes's flight to France. Wilkes was destined to struggle again and again with Privilege. Being elected for Middlesex, he was expelled as a libeller; a second time, too, elected without any opposition, and expelled. Chosen a third time by a majority of more than a thousand votes, he was removed from the House, which coolly ordered the return to be amended, by striking out his name, and inserting that of his defeated opponent in its place. The freeholders were disfranchised, and their elective right transferred to that majority which Mr. Grenville had always found so willing to do the bidding of the ministers of the Crown, by the vote of that majority at the dictation of those ministers. In vain did Lord Chatham and the whole body of the Whigs resist this notorious abuse of privilege. The privilege was to expel an unworthy member. The abuse consisted in excluding the expelled member when a second time returned by the constituent body; treating the offence of libel (of which, indeed, he had been convicted only by their vote) as a permanent disqualification. All traces of these unconstitutional proceedings were indignantly expunged from the Journals when the Whig party came into power. The privilege of debating in secret appears to be something sui generis—something superior even to privilege itself. Under the name of a Standing Order, it has been always held to impose on the House the positive obligation of taking one step, and one only. For if any one member chooses to remark, in the Speaker's hearing, the presence of a single stranger during a debate, all the business of the House is instantly suspended till the stranger is
* Comm. Journal, 23d Nov. 1763. Lords' Journal, 29th Nov. 1763. The same Journals, at the same period, are full of votes directed against indvidualsi suing members, or their servants, in respect to their private rights.
* See Vol. XV. of Cobbett's Parl. Hist. F. 1365. S
removed —a state of things wonderfully at variance with the supposed necessity for another supposed privilege—that of publishing any paper whatever, however injurious to others, in order that the representative may be enabled to explain his own parliamentary conduct on all occasions, to his constituents. The exclusion of strangers (that is, of reporters, for the public has no interest in the attendance of any others) has not been frequent during the last fifty years; the results have sometimes been singular. The motion is generally made, or rather the stranger pointed out by some supporter of the ministers of the day, but so injudiciously and clumsily, that these have more commonly been ashamed and annoyed than relieved. At the outbreak of the war in 1803, Mr. Fox attacked the conduct of the preceding negotiations in one of his ablest and most ingenious speeches, which was circulated in the usual manner through the country and the world. The friends of government felt the immense importance of Mr. Pitt's answer—one of his most powerful efforts, a strikingly eloquent incentive to a warlike policy; but this speech was lost to the country by the exclusion of the reporters. Again, on some complaint respecting the Prince of Wales's conduct towards his wife, an honorable member shut out the public from knowing what passed in the House of Commons by the ordinary and accurate reports of the newspapers, notwithstanding which, a tolerably full account of the debate made its appearance; the part which every member had taken was announced to the public, and though the line of argument might be less faithfully preserved, we may be sure that no unwelcome truth was lost, nor any severe animadversion suppressed. This glaring defiance of so notorious a privilege, whether proceeding from a member or an officer, or some lurking stranger, was prudently passed over; for no less glaring was the demonstration, that in our present state of society, secresy of debate is in fossible. The privilege, though still nominally existing, is practically at an end ; by a whimsical reverse, it is now never mentioned in either House except for the purpose of giving additional publicity to the reports of debates in parliament. The exclusion of strangers in 1810 was in itself extraordinary; and was followed by consequences connected with our leading argument. The people of England at that period were ashamed and mortified by the disgrace that had fallen upon their arms in the expedition to the Isle of Flushing ; and full of indignation at the monstrous mismanagement to which it was ascribed. A parliamentary inquiry was commenced; but the debates were kept secret. Strangers were excluded, and some harsh remarks were made in debate on the reporters as a body. A club, accustomed to meet and discuss public measures, propounded a question which reflected on the member who moved this exclusion, Mr. Yorke; and on him also who indulged in those remarks. The placard containing the question was laid on the table of the House, which resolved to assert its dignity, and summoned the printer. The charge preferred by Mr. Yorke was not for libel or contempt, but (credite, posteril) for a violation of the Bill of Rights! The process was opened by unfolding that great Constitutional Charter, out of which the clerk solemnly read two extracts; one from the list of grievances— “Prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament,'—one from the list of securities against the repetition of grievances—"The freedom of speech, and debates or proceedings in Parliament, ought not to be questioned in any court or place out of Parliament.’ It was thus assumed that the British Forum in Bedford Street, Covent Garden, was a court or place in which the Bill of Rights had prohibited speeches in Parliament from being questioned, and that such a questioning was one of the reasons for the expulsion of James II. The printer gave up Mr. Gale Jones as the real delinquent, and he was called to answer. He claimed the right of Englishmen to canvass the conduct of their representatives in Parliament, but acknowledged with expressions of regret that the language of the placard was indefensible. He was sent to Newgate, where he was confined till the session ended. More than once in the course of it, Sir Samuel Romilly endeavored to procure his liberation, but without success; though he was warmly supported by no less an ally of the Minister than Sir William Grant, the illustrious Master of the Rolls. It was on this occasion that Sir Francis Burdett, after opposing the vote for Jones's imprisonment, addressed a letter to his constituents, with an argument against the power of the House to commit for libel.
This publication was also voted a libel, and the House had to consider of the writer's punishment. The Whig party, then in opposition, while most of them were disposed to hold this privilege high, sought to bring the matter to a close by a reprimand to be administered by the Speaker to Sir Francis Burdett; but the Ministers and the majority insisted on his imprisonment, and the honorable baronet was sent to the Tower. Having in his argument denied the lawfulness of such imprisonment, he commenced an action at law against the Speaker for signing the warrant under which he was arrested. New debates arose. A proposal to commit to prison the solicitor who had served the Speaker with notice of action, was made 1 but overruled. It was resolved that no steps should be taken for staying the action, but that on the contrary the Speaker should appear and plead, stating the proceeding of the House as his defence, the validity of which was thus submitted to the judgment of the Court of King's Bench. The court unanimously upheld the arrest as legal; and their judgment was unanimously affirmed, first in the Court of Exchequer Chamber, and afterwards in the House of Lords. The utmost agitation, however, prevailed in the public mind. It broke out in meetings, resolutions, petitions to Parliament, some so intemperately worded as to secure their own rejection. There was rioting and loss of life, and the utmost estrangement between the Parliament and the public;— feverish discontent on one side, the jealous irritation of wounded self-importance on the other. Mean time the national business was wholly neglected by the House; a diversion was effected in favor of the accused Ministers, and the inquiry into the causes of our disasters at Walcheren defeated. On a dispassionate review of these transactions, after an interval of five-and-thirty years, it is difficult to believe that they attained any one of their objects. Probably no doubt can now be entertained, that the exclusion of the public from these debates was unwarrantable; that the British Forum was justified in the substance of its censure, though perhaps too strongly worded; that the Bill of Rights was not invaded, except by those who so ludicrously brought it into the controversy; that common prudence dictated the passing over Jones's offence in silence; that the dignity of the House would have been more conspicuously vindicated by refusing to take up such a quarrel; that it