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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.

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 Wilkes was destined to struggle again 1803, Mr. Fox attacked the conduct of the and again with Privilege. Being elected preceding negotiations in one of his ablest for Middlesex, he was expelled as a libel- and most ingenious speeches, which was ler; a second time, too, elected without circulated in the usual manner through the any opposition, and expelled. Chosen a country and the world. The friends of third time by a majority of more than a government felt the immense importance of thousand votes, he was removed from the Mr. Pitt's answer-one of his most powerHouse, which coolly ordered the return to ful efforts, a strikingly eloquent incentive be amended, by striking out his name, and to a warlike policy; but this speech was inserting that of his defeated opponent in lost to the country by the exclusion of the 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.

This

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. 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 The privilege of debating in secret ap-of society, secresy of debate is impossible. pears to be something sui generis-some- The privilege, though still nominally existthing 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 dur ing a debate, all the business of the House is instantly suspended till the stranger is

ing, 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 This publication was also voted a libel, and the disgrace that had fallen upon their arms the House had to consider of the writer's in the expedition to the Isle of Flushing; punishment. The Whig party, then in opand full of indignation at the monstrous position, while most of them were disposed mismanagement to which it was ascribed. to hold this privilege high, sought to bring A parliamentary inquiry was commenced; the matter to a close by a reprimand to be but the debates were kept secret. Stran- administered by the Speaker to Sir Francis gers were excluded, and some harsh re- Burdett; but the Ministers and the majority marks were made in debate on the reporters insisted on his imprisonment, and the honas a body. A club, accustomed to meet orable baronet was sent to the Tower. 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.

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.

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! but overruled. It was reThe charge preferred by Mr. Yorke was solved that no steps should be taken for not for libel or contempt, but (credite, staying the action, but that on the contrary posteri!) for a violation of the Bill of the Speaker should appear and plead, statRights! The process was opened by un-ing the proceeding of the House as his defolding that great Constitutional Charter, fence, the validity of which was thus subout of which the clerk solemnly read two mitted to the judgment of the Court of extracts; one from the list of grievances- King's Bench. The court unanimously '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 de- The utmost agitation, however, prevailed bates or proceedings in Parliament, ought in the public mind. It broke out in meetnot to be questioned in any court or place ings, resolutions, petitions to Parliament, out of Parliament.' It was thus assumed some so intemperately worded as to secure that the British Forum in Bedford Street, their own rejection. There was rioting and Covent Garden, was a court or place in loss of life, and the utmost estrangement bewhich the Bill of Rights had prohibited tween the Parliament and the public;speeches in Parliament from being ques- feverish discontent on one side, the jealous tioned, and that such a questioning was one irritation of wounded self-importance on the of the reasons for the expulsion of James other. Mean time the national business II. The printer gave up Mr. Gale Jones was wholly neglected by the House; a dias the real delinquent, and he was called to version was effected in favor of the accused answer. He claimed the right of English-Ministers, and the inquiry into the causes men to canvass the conduct of their repre- of our disasters at Walcheren defeated. sentatives in Parliament, but acknowledged On a dispassionate review of these transwith 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.

actions, 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

would have been much more expedient to that a sufficient number of extra copies dismiss Sir Francis Burdett with a repri- should be printed for that purpose.' And mand, than parade him through the streets it seemed good to them, in March, 1836, to of London, a triumphant martyr, to the resolve that such papers should be sold to Tower. But out of evil cometh good: the public at the price of one halpenny per some advantage resulted, not the less valua-sheet; that a discount of 12 per cent be ble from being directly opposite in its nature allowed to the Trade, and that Messrs. to that which had been expected. The Hansard should account for the proceeds House of Commons refused to stay the ac- to the House of Commons.' As most of tion, or commit or threaten the party or his these papers consist of partial statements, attorney, who appealed to the law. The often coming from an interested quarter, but House of Commons was not afraid to sub-bearing hard upon the character and intemit the existence as well as the exercise of rest of absent men, and as the appetite for the privilege then disputed, to the decision attack is strong and general, it may be laof a court of justice. Nor was the court mented, when this novel arrangement was deterred from entertaining those questions, made for their indiscriminate sale, that no and hearing them largely discussed, though precautions were taken for protecting indithe attorney-general, as counsel for the viduals from slander by their publication. Speaker, demanded a judgment favorable, An imprimatur might here have afforded on the simple ground that the plaintiff had some security; the revision and selection been imprisoned by authority of the House. of papers might have been entrusted to an The privilege there acted upon was admit- impartial Committee. Supposing the prited by the court to afford a justification, not vilege of circulating libels for money to be because it was claimed as a privilege by the clear and indisputable, some means of renHouse, or declared by them to be their pri- dering its exercise harmless would have vilege; but because it was a privilege of the been just and decent. But the manner in House of Commons well known to, and al- which it was exercised may certainly be ciways recognized by, the law. The remark-ted under the head of abuses. We take as able passages in the judgments of Lord El- a sample, a petition presented to the House, lenborough and Mr. Justice Bayley, where-pouring forth in coarse language the most they adopt the manly principles of their great malignant and absurd calumnies on the prepredecessor Holt, and shake off the fetters sent Chief-Justice of the Common Pleas, by which former judges had permitted both themselves and their fellow-subjects to be enthralled, are alone an immense gain to the cause of constitutional freedom.

and on a jury, which, under his direction, had found a verdict against the petitioner. That jury had done no wrong; that learned judge had only performed his ordinary duty The part taken by Sir Samuel Romilly in a manner wholly blameless; yet, because deserves to be admired and studied. His the party lost the verdict, he imputed corDiary* contains a most interesting picture ruption to this jury, naming all the twelve; of what was passing in his mind-a mind no and the gentlest and purest of judges was less ingenious and reflecting, than upright held up to execration as a more capricious and independent. He strongly objected to tyrant than Jefferies-a terror to his milder the penal visitation of both these offenders brethren on the Bench. This libel was cir-expressing his doubts whether their pub-culated far and wide, at the cost of a few lications, being in fact no obstructions, halfpence, under the sanction of the House could justly be punished as libels; but his of Commons, and necessarily bought and clear opinion against violently prostrating all the safeguards so carefully provided by the recent law for persons accused of libel, Certain Commissioners had made a reand subjecting them to discretionary punish- port to his late majesty on the interesting ment at the mere will of their prosecutors. subject of prison discipline; which, in conOn the 13th of August, 1835, it occurred formity to Act of Parliament, was laid beto the House of Commons to resolve that fore the House of Commons. Their inquiparliamentary papers and reports, printed ries brought valuable information to the lefor the use of the House, should be render-gislature, which it might also be desirable ed accessible to the public by purchase, at the lowest price they can be furnished, and

*Vol. II. of his Works, 309-321

preserved by all who wished to have their Appendix to Parliamentary Votes perfect.

to publish. But they unfortunately had picked up on their way a trivial matter of detail, which led to a controversy between the Commissioners and the court of Aldermen,

inconsistent with the determination of either House of Parliament thereon, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament."

respecting the management of the prison of assume to decide upon matters of privilege Newgate. The Commissioners introduced the name of a person, without necessity, in such a manner as the law would deem clearly libellous. If the House had appointed such a Committee as we have alluded to, this irrelevant passage would probably have been left out of the printed copy at least the person's name would have been struck out. The House, however, apparently without any examination of the contents, directed the whole Report to be printed and sold in pursuance of their resolution; and Mr. Stockdale commenced his first action against Mr. Hansard, the agent appointed by the House for that purpose.

We freely discussed, in this journal, these not too clear, and not even very grammatical resolutions shortly after their appearance, and do not mean to comment upon them now. We proceed with the narrative of events. While the committee were in deliberation, the same plaintiff had commenced a second action against the same defendant for publishing another copy of the same libel. The House, which had adopted the resolutions of the committee, The Chief-Justice of the King's Bench, but superadded another while this second on the trial, was called upon by the defend-action was pending-a resolution that this ant's eminent counsel, Lord Campbell, then very act of publishing was in exercise of Attorney-General, to direct the jury to ac- their privilege-then determined to defend quit him, on the ground that the resolutions to print and sell justified this publication. The Chief-Justice thought otherwise, and expressed his opinion in strong language. The law, as he laid it down, might have been questioned, either on a motion in Court for a new trial, or by bill of exceptions; which would have transferred the whole matter directly to a superior court. But no such step was taken. The heavy damages awarded by the jury were paid without dispute.

the action for Hansard, and to plead in his name, as their predecessors in 1810 had done; when Sir Francis Burdett brought his action of assault and false imprisonment against the Speaker himself, for his warrant issued in obedience to a vote of the House.

The plea was Privilege. The plaintiff denied its validity as a defence, and the judges were thus compelled, by the act of the House, to decide that point. They heard arguments of great ability, and of very unusual length, and decided unanimously that the defendant was not justified. Each of the four judges delivered his reasons for thinking, first, that a court of justice is not bound by a declaration of either House of Parliament as to the extent of its own privileges; and secondly, that the order of the House did not protect its agent, when sued in an action for libel by a calumniated fellow subject.

A Committee was immediately appointed by the House, 'to examine precedents with respect to the circulation and publication of printed papers, and to ascertain the law and practice of Parliament prior to, and since the order for the sale of such papers.' The Committee took a much wider range, deeming it also expedient to consider, in the most general terms, the subject of parliamentary privilege, and the jurisdiction Different opinions may be, and have been of this House to determine the extent of its entertained, as to the correctness of this own privileges.' They affirmed the exist- decision; but if the law can confer a vested ence of that privilege, in the first place: right, this plaintiff, having obtained the they proceeded to resolve, that the liberty judgment of a competent court in his favor, of publishing papers is an essential incident had a right to sue out execution upon that to the constitutional functions of Parlia- judgment, and he accordingly, in the comment, more especially to the representative mon course, required the Sheriffs to levy branch of it. They added, that the insti- his damages and costs. And if ever the law tution of any proceeding to bring their cast a plain duty on its officer, it was that so privileges into discussion or decision before imposed upon these Sheriffs. They were any other court or tribunal is a high breach bound by their oath of office, and must of privilege; and renders all parties con- have been compelled by the court, on apcerned therein amenable to its just displea- plication, to perform this duty. Yet that sure, and to the punishment consequent very House of Commons which had exthereon.' They conclude with this never-pressly refused to take measures for stopto-be-forgotten admonition to the courts of ping the action; which had directed its offijustice,That for any court or tribunal to cer to submit his defence to the judgment

of the court; which declined to bring that tion of the offending member, when next judgment before a Court of Error, and did he presents himself as a candidate for a seat not, even by a vote, declare the judgment in Parliament. And if he happened not to illegal-chose to interfere in this last stage, have obtained a seat in the Upper House, which their own proceeding had rendered by creation or succession, and if he had inevitable. They strove by menaces to de- performed those promises of bribery, which prive the plaintiff of the fruits of this judg- possibly procured his former election, and ment, and actually incarcerated the Sheriffs if he coveted the honor of representing one for carrying it into effect. of the newly enfranchised boroughs, or any The Sheriffs sued out their habeas corpus. popular constituency, it is possible that at And if the House, following the precedent the end of four, or five, or of six years, the of Paty's case, had returned all these facts victim of an unjust persecution, or his wias the cause of detention, nearly the same dow, or his or her executors or administraquestion which was left undetermined in tors, may hope for the satisfaction of seeing 1704 must have been decided. But they the abettor of injustice thrown out of his thought it became them to make a general seat. But all men are slow to suspect the return, that the Sheriffs had been guilty of government under which they live; the a contempt and breach of privilege; and people of England habitually confide in the court, in conformity with the authori- their own branch of the constitution. Abties, was bound to give credit to this gen- stract possibilities of danger do not disturb eral charge, and remand the Sheriffs to custody; as they must equally have done if a similar return had been made by any competent court, and in strict analogy to what they lately have decided in a case brought before them from the Cour Royale of the Island of Jersey.

the repose of the great majority. Let us not deceive ourselves; force and its consequence, success, dazzle men; and bold aets of tyranny are not very unpopular. Neither Henry VIII. nor Cromwell have received the just measure of indignation from posterity. Violence may even command praise Upon this general survey of the proceed- and sympathy, if its object be sagaciously ings of former Houses of Commons in mat- chosen. Most of the people out of doors,' ters of privilege, may we not rest the proof who gave a thought to the sentence on Edof our proposition, a proposition in itself ward Floyd, probably said that he was not revolting to reason? Is it not clear rightly served for being a bloody Papist. from experience and the evidence of facts, The imprisonment of the Sheriffs in their that the House of Commons, like every year of office, was a good joke for some in popular assembly, and every human institution, is capable of abusing its power? Here is frequent and flagrant abuse, both in the assumption of privileges when they did not exist, and in the mode of exercising them where perhaps they did. It is abuse, too, committed in all ages.

the House, and no doubt for many out of it. When allusion was made to the possibility of so dealing with the Judges, it was consistently treated with some merriment. The propensity in vulgar minds to take part with the strong against the weak, when unjustly trampled upon, is a most important fact in The champions of Privilege do not pre- the history of human nature. That it extend any other security against its abuse, ists, all experience proves. The cruel than public opinion-public opinion which punishments of Prynne and others in the may come limping, pede claudo, years after reign of Charles I., excited more scorn the mischief has been done, can never in- against the sufferers who were made ridicuterpose swiftly enough to prevent it, and lous, than indignation against their hateful can never make amends for it. The re- oppressors. This is the direction in which spectful remonstrance of public opinion the current of satire is too ready to flow. against the falsified return which placed We noticed in our last Number the proud Luttrell in the House, instead of Wilkes, triumph achieved by the true patriot, Daniel as member for Middlesex, was treated by De Foe, when, sentenced to the pillory for his the House with scorn; and might even virtue, he was greeted by the disabused peohave been visited, in conformity with some ple with applause, instead of being covered precedents, with vengeance as a breach of with insult. But we had also to record of privilege. But these same champions of a man of letters, a wit, and a divine-no public liberty, and trustees for the people, meaner judge of human nature than Jonahave suggested but one way in which pub- than Swift-that he speaks of this same lic opinion can make itself felt-the rejec-man with contempt, because he had been in

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