ed with them from this narrative, and will were engaged for the defence of this distinof course be prepared to hear that a privi-guished culprit. They saw notices stuck lege deemed of such immense importance up on the walls of Westminster Hall, that was effectually vindicated-that no such all who ventured to appear in his behalf appeal was ever afterwards discussed at the would incur the displeasure of the House. bar of the House of Lords-at least, that The Earl (May 10) informed the House of the practice was not permitted to prevail Lords that he had expected to meet his without negotiation and conference, and counsel assigned by their Lordships for the some well-devised precautions of legislative defence of his plea; but he had received a wisdom. Hide, blushing glory, hide the message from every one of them, that they humiliating result! The House of Com- dare not appear to argue, by reason of a mons, those exclusive judges of their own vote of the House of Commons, whereby the privileges, which they hold but for the ben petitioner is destitute of all counsel.' Some efit of the whole people, surrendered this may regret that such men as Holt and Rayprivilege without another blow. They have mond submitted to this injunction. We tacitly acquiesced in this claim of the think it probable that Erskine would have Lords-nay, more, they have been daily, resisted; and can form some idea of the from that hour to the present, incurring the use to which he would have turned this guilt of betraying the rights and liberties very topic, from his noble defence of Stockof the people of England. Not a session dale; when, not condemned by a vote, but has passed away in which members have prosecuted before a judge and jury, by ornot been parties prosecuting such appeals der of the House of Commons, for a libel on in their own case, or maintaining as advo- that assembly. vates the cause of their clients.

We ought not, however, hastily to supSome will doubt whether it ever can be pose that the Earl of Danby's counsel were right to interpose Privilege between the ad-deterred by fear from the performance of vocate and client: there are some occa- their duty. Possibly they felt a natural resions on which it is manifestly indefensible. pugnance to the possibility of producing an Suppose the Crown to possess such a power, unseemly collision between the two most what would be thought of its being exer- venerable authorities in the state. The cised in a criminal prosecution? Conceive Lords ordered their attendance. The Comthe Attorney-General, or the Lord Advo- mous insisted on their absence: the Sercate, putting an individual on his defence geant-at-arms might have held them in cusagainst charges involving life or liberty, and tody for violating the inhibition; the Blackthen threatening him with summary ven- rod for disregarding the summons; or the geance if he should presume to obtain the last-named officer might have been directed aid of Counsel! Conceive a general notice to rescue them from the hands of the forto all practitioners of the law, that such as midable Topham. Acquiescence would dared to appear in behalf of one accused, have been impossible on either side, and or to advise him on the means of establish-resistance might have ended in bloodshed. ing his innocence, should expiate their audacity in a jail! It would not be a whit more extravagant to utter the same threat against the party himself, who might possibly be much better qualified to defeat the prosecution; and thus accusation and conviction would be identical, and every man would be bound to submit to judgment against himself.

When the Earl of Danby, in 1679, was impeached by the Commons before the Lords for High Crimes and Misdemeanors, he sought to avail himself of the King's pardon for protection against the charge. Doubts were raised as to its legal effect. He wished the point to be argued by his Counsel; and some of the foremost barristers, men destined to fill at later periods the chief seat in our first common-law court,

Possibly these eminent lawyers thought that they best consulted their client's safety by yielding to an order so unjust and ungenerous. The advocate of a client prosecuted by unscrupulous power, may fairly speculate on producing a reaction in his favor, by giving that power its uncontrolled career. The enforced silence of counsel must have inclined any judges all the more to believe that the point raised ought to save the destitute petitioner.

But Privilege was here called into full operation-the privilege of doing injustice, of condemning unheard, of deciding without discussion, of putting learned men to silence, lest their arguments should wrest a victim from the hands of persecution!

We reach the era of the Revolution, one of the most glorious events in the history of

human affairs. Never had such great benefits tution of the House of Commons in elecbeen purchased at so little cost, or a vast tions, in voting for whoever has the support change wrought with so little ground for of the minister, which must end in the rucavil or complaint. The Parliament did in of the public liberty.' So gigantic was well in asserting its great and undoubt- the evil overthrown by the Grenville Act, ed rights, and in reversing the unjust at- that that measure is styled by Mr. Hatsell tainders of the preceding reigns. Perhaps one of the noblest works for the honor of the House of Commons would have done the House of Commons, and the security well to proceed against some at least of the of the constitution, that was ever devised judicial delinquents by the known constitu- by any statesman or minister. The remetional method of impeachment. They pre- dy was to take all these questions out of the ferred the resort to Privilege. They com- jurisdiction of Privilege, and refer them to mitted to Newgate two ex-judges for no a tribunal erected by statute. Has it been criminal or unlawful act, but for the faithful wholly successful? Let those answer who discharge of their duty. Both had been remember the system of nominees appointturned out of the judgment seat by Charles ed by the respective parties, and, though II. because they refused to bend the law to sworn as judges, scarcely ever known to his tyranny; but they had been guilty of vote against those who proposed them. pronouncing a judgment in strict accord- Let those answer who remember the eagerance with the law, ten years before, against ness displayed on both sides to obtain a Topham, the Sergeant-at-arms. No cor- good Committee,-that is, one consisting ruption or partiality imputed-their decision fully justified by clear legal reasoning -and even so explained by themselves as not to draw into doubt any privilege claimed by the House of Commons-their error, if error they had committed, atoned by expressions of sorrow only too humble: they were iniquitously detained in prison till the session ended. The proceeding is a dark stain on the character of that House of Commons.

exclusively, if possible, of one political party; and how rarely such speculations were deceived. Let those answer who, from time to time, have been laudably engaged in framing new securities for an impartial decision, by a series of new statutory enactments. On one great occasion the Grenville Act itself was repealed by a special vote of the House, which gave back to Privilege what ought to have fallen within the province of Law. They took upon themselves to decide on the merits of Mr. Fox's election for Westminster, and gave one more example of their readiness to abuse their power, in deference to the Prime Minister.

The Privilege of the House of Commons to determine the right of their own members to contested seats in that assembly on petition, was perhaps the most undeniable of any. The jurisdiction involved an important trust, a public duty of cogent obli- That now abandoned privilege was clung gation. What severe penalties might have to with fondness. The party in power was fallen on the libeller, who had dared to unwilling to throw up the advantage derivdoubt the purity of their decisions! Yet ed from their majority. And, not satisfied there is strong proof, from competent au- with securing the seat of their adherent by thority-we might say from internal evi- their vote, they strove to make the same dence that in process of time every exer- vote protect the returning officer from the cise of that right had become an abuse. legal consequences of a partial judgment, Without the least regard to the legal mer- by which the electors in the losing interits of the case, every member who belong-est were disfranchised. This led to the ed to the prevailing party in politics was great case of Ashby and White. A person sure of success. As in the time of the civ-in a very humble condition-a cobbler, as il wars of York and Lancaster, they he was reproachfully reminded-tendered blindly followed the dictates of the faction his vote at the election of members of Parwhich had the upper hand. Particular ca-liament for the borough of Aylesbury, and ses of iniquity and inconsistency might be edifying, but we are contented with the general fact. Mr. George Grenville told Mr. Knox, under-secretary of state-when incapable of serving the public in an official capacity of his intention to endeavor to give some check to the abominable prosti

was rejected by the returning officer. The losing candidate petitioned the House of Commons, which declared that his vote was inadmissible. The elector, however, being advised that his vote was notwithstanding perfectly good, brought his action for the rejection of his vote. Lord Chief-Justice

had made the habeas corpus, as was vainly hoped, the all-sufficient bulwark of that inestimable blessing.

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 All the twelve judges being consulted, Commons alone had power to decide. And were of opinion that the writ of error lay it is certain that the House alone had pow-in such a case; and ten of them (two other to decide who should occupy the seat, ers not differing, but only doubting) were and, with a view to that result, whether the clearly of opinion that it was grantable ex plaintiff had the right of voting. But the debito justitiæ, and coULD not be withheld; plaintiff contended that he had suffered a doctrine, by the way, without which 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 condemned Paty and others, and voted that 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 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

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 The majority in the House of Commons, legal assistance to their clients, and forbid. however, passed a resolution to the same ding all Sergeants-at-arms to meddle with effect as the judgment of the majority of them. There is reason to believe that the the Court; they did not in the first instance Commons, with marvellous inconsistency, threaten the plaintiff with their displeasure, admitted the validity of this protection. and he brought his writ of error on that The five suitors appear to have lain in jail judgment. The House of Lords, after con- till the end of the session; but this was sulting all the judges, decided in favor of speedily terminated by the Crown, which the Chief-Justice's opinion, and reversed prorogued Parliament. Let it be stated 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.

that all these measures were strenuously resisted by the Whig party in the House of Commons; 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 popu lar 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.

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 The Lords on this occasion, as they have that legal right. He sued out a writ of er- on many others, asserted the true princi ror on this judgment of remand. What, ples of constitutional freedom. They found then, was the resource of the chosen trus- it necessary to declare, by a formal resolutees of the people, quos magnum aliquid tion, one of those elementary truths which, dubia pro libertate decebat ;-those who in ordinary circumstances, are too plain eihad been pronounced but a few days be- ther to be questioned or asserted. Neifore, by judicial authority, incapable of ex- ther House of Parliament hath any power, ceeding their bounds, or doing any thing by any vote or declaration, to create to amiss? They actually stooped to present themselves any new privilege that is not a humble address to the Crown, praying warranted by the known ways and custom that this writ of error might be withheld, of Parliament.' Again, The deterring and the subject deprived of the benefit of a electors from prosecuting actions in the orlegal judgment on his right to personal free-dinary courts of law, and terrifying attordom, secured by so many statutes, which neys, solicitors, counsellors, and sergeants

at-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.' *

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.

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 elect- The privilege of members themselves to or a defined remedy for that acknowledged be exempt from all legal process, was injury. In strict conformity with the prin- equally established by the prevailing pracciples of the common law, so ably main- tice, and was equally unworthy of a civitained by Holt, as they had previously been lized country. However indisputable a taught by Hale, and were afterwards avow- plaintiff's right, he could not safely attempt ed by Willes, a Chief-Justice of almost to enforce it against a member either by equal reputation, the subject's right was es- action at law or suit in equity. But, while tablished to do that freely at his own will the House resented all recourse to legal and pleasure, which the House of Com-process against its members, the habit of mons declared he could not do without a deciding matters in their favor by a process 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.

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 Parliamentthe exemption from personal arrest. In civil actions, when the law was such that

6

any one might restrain the liberty of any in the debate was that of Lord Lyttleton.* other by an affidavit, the inconvenience Your Lordships will on no account dethat might probably result to a just credi-part from that maxim, which is the cornertor from the release of his debtor in a par- stone of all gvernment, that JUSTICE ticular instance, could not be weighed should have its course without stop or imagainst the public mischief of exposing pediment. Jus, FAS, LEX, POTENTISSIMÆ every obnoxious member to arrest. The SINT. Obstruct this, and you open a door law has ever regarded this privilege as sa- to all violence and confusion, to all iniquicred. In criminal cases, where the trial ty, and to the cruelties of private revenge; and conviction of guilty men is a para- to the destruction of private peace, the dismount object, but the guilt can, in the first solution of public order; and, in the end, instance, only be suspected and charged, a to an unlimited and despotic authority, practical difficulty arises, which, however, which we must be forced to submit to as a law and privilege, through the mediation of remedy against such intolerable evils. The common sense, and with the sanction of dominion of law is the dominion of liberty. time, had well overcome. It was perfectly PRIVILEGE AGAINST LAW in matters of high understood that members might be appre- concernment to the public, IS OPPRESSION, hended on a regular charge of treason, is TYRANNY, WHEREVER IT EXISTS.' felony, or breach of the peace, AND IN NO

OTHER CASES.

These general sentiments, so just and constitutional, and expressed with such During many years of the reign of fervid eloquence, might have appeared, inGeorge the Third, the domestic history of deed, a little out of place as applied to a England is almost monopolized by the privilege which had been acknowledged to achievements of a restless and factious job- be lawful in a court of justice, and was ber, warring against an unpopular court founded on ancient practice, and on no and ministry; and their efforts to over- slight reasoning. But mark the strange whelm him. The privilege of both Houses operations of this wonderful power of priwas exerted in this warfare. Having vilege! 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 selfdenying, 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."

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 fettered 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, This resolution was placed upon the ta- and gave a fatal wound to that very justice ble of the House of Lords, and their lord-of which all the noble lords were so much ships concurred in it. The great speech

* 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.

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