would have been much more expedient to dismiss Sir Francis Burdett with a reprimand, than parade him through the streets of London, a triumphant martyr, to the Tower. But ‘out of evil cometh good: some advantage resulted, not the less valuable from being directly opposite in its nature to that which had been expected. The House of Commons refused to stay the action, or commit or threaten the party or his attorney, who appealed to the law. The House of Commons was not afraid to submit the existence as well as the exercise of the privilege then disputed, to the decision of a court of justice. Nor was the court deterred from entertaining those questions, and hearing them largely discussed, though the attorney-general, as counsel for the Speaker, demanded a judgment favorable, on the simple ground that the plaintiff had been imprisoned by authority of the House. The privilege there acted upon was admitted by the court to afford a justification, not because it was claimed as a privilege by the House, or declared by them to be their privilege; but because it was a privilege of the House of Commons well known to, and always recognized by, the law. The remarkable passages in the judgments of Lord Ellenborough and Mr. Justice Bayley, where they adopt the manly principles of their great predecessor Holt, and shake off the fetters 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. The part taken by Sir Samuel Romilly deserves to be admired and studied. His Diary” contains a most interesting picture of what was passing in his mind—a mind no less ingenious and reflecting, than upright and independent. He strongly objected to the penal visitation of both these offenders —expressing his doubts whether their publications, being in fact no obstructions, could justly be punished as libels; but his clear opinion against violently prostrating all the safeguards so carefully provided by the recent law for persons accused of libel, and subjecting them to discretionary punishment at the mere will of their prosecutors. On the 13th of August, 1835, it occurred to the House of Commons to resolve ‘that parliamentary papers and reports, printed for the use of the House, should be rendered accessible to the public by purchase, at the lowest price they can be furnished, and

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that a sufficient number of extra copies should be printed for that purpose.’ And it seemed good to them, in March, 1836, to resolve ‘that such papers should be sold to the public at the price of one halpenny per sheet; that a discount of 12% per cent be allowed to the Trade, and that Messrs. Hansard should account for the proceeds to the House of Commons.” As most of these papers consist of partial statements, often coming from an interested quarter, but bearing hard upon the character and interest of absent men, and as the appetite for attack is strong and general, it may be lamented, when this novel arrangement was made for their indiscriminate sale, that no precautions were taken for protecting individuals from slander by their publication. An imprimatur might here have afforded some security; the revision and selection of papers might have been entrusted to an impartial Committee. Supposing the privilege of circulating libels for money to be clear and indisputable, some means of rendering its exercise harmless would have been just and decent. But the manner in which it was exercised may certainly be cited under the head of abuses. We take as a sample, a petition presented to the House, —pouring forth in coarse language the most malignant and absurd calumnies on the present Chief-Justice of the Common Pleas, 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 in a manner wholly blameless; yet, because the party lost the verdict, he imputed corruption to this jury, naming all the twelve; and the gentlest and purest of judges was held up to execration as a more capricious tyrant than Jefferies—a terror to his milder brethren on the Bench. This libel was circulated far and wide, at the cost of a few halfpence, under the sanction of the House of Commons, and necessarily bought and preserved by all who wished to have their Appendix to Parliamentary Votes perfect. Certain Commissioners had made a report to his late majesty on the interesting subject of prison discipline; which, in conformity to Act of Parliament, was laid before the House of Commons. Their inquiries brought valuable information to the legislature, which it might also be desirable 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, respecting the management of the prison of 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. The Chief-Justice of the King's Bench, on the trial, was called upon by the defendant's eminent counsel, Lord Campbell, then Attorney-General, to direct the jury to acquit 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. 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 qf 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 of this House to determine the extent of its own privileges.” They affirmed the existence of that privilege, in the first place: they proceeded to resolve, that the liberty of publishing papers is an essential incident to the constitutional functions of Parliament, more especially to the representative branch of it. They added, that ‘the institution of any proceeding to bring their privileges into discussion or decision before any other court or tribunal is a high breach of privilege; and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.' They conclude with this neverto-be-forgotten admonition to the courts of justice, “That for any court or tribunal to

assume to decide upon matters of privilege 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.” 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, but superadded another while this second action was pending—a resolution that this very act of publishing was in exercise of their privilege—then determined to defend 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. Different opinions may be, and have been entertained, as to the correctness of this decision; but if the law can confer a vested right, this plaintiff, having obtained the judgment of a competent court in his favor, had a right to sue out execution upon that judgment, and he accordingly, in the common course, required the Sheriffs to levy his damages and costs. And if ever the law cast a plain duty on its officer, it was that so imposed upon these Sheriffs. They were bound by their oath of office, and must have been compelled by the court, on application, to perform this duty. , Yet, that very House of Commons which had expressly refused to take measures for stopping the action; which had directed its officer to submit his defence to the judgment of the court; which declined to bring that judgment before a Court of Error, and did not, even by a vote, declare the judgment illegal—chose to interfere in this last stage, which their own proceeding had rendered inevitable. They strove by menaces to deprive the plaintiff of the fruits of this judgment, and actually incarcerated the Sheriffs for carrying it into effect. The Sheriffs sued out their habeas corpus. And if the House, following the precedent of Paty's case, had returned all these facts as the cause of detention, nearly the same question which was left undetermined in 1704 must have been decided. But they thought it became them to make a general return, that the Sheriffs had been guilty of a contempt and breach of privilege; and the court, in conformity with the authorities, was bound to give credit to this general 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 Rayale of the Island of Jersey. Upon this general survey of the proceedings of former Houses of Commons in matters of privilege, may we not rest the proof of our proposition,-a proposition in itself not revolting to reason 7 Is it not clear from experience and the evidence of facts, that the House of Commons, like every 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 champions of Privilege do not pretend any other security against its abuse, than public opinion—public opinion which may come limping, pede claudo, years after the mischief has been done, can never interpose swiftly enough to prevent it, and can never make amends for it. The respectful remonstrance of public opinion against the falsified return which placed Luttrell in the House, instead of Wilkes, as member for Middlesex, was treated by the House with scorn; and might even have been visited, in conformity with some precedents, with vengeance as a breach of privilege, But these same champions of public liberty, and trustees for the people, have suggested but one way in which public opinion can make itself felt—the rejec

tion of the offending member, when next he presents himself as a candidate for a seat in Parliament. And if he happened not to have obtained a seat in the Upper House, by creation or succession, and if he had performed those promises of bribery, which possibly procured his former election, and if he coveted the honor of representing one of the newly enfranchised boroughs, or any popular constituency, it is possible that at the end of four, or five, or of six years, the victim of an unjust persecution, or his widow, or his or her executors or administrators, may hope for the satisfaction of seeing the abettor of injustice thrown out of his seat. But all men are slow to suspect the government under which they live; the people of England habitually confide in their own branch of the constitution. Abstract possibilities of danger do not disturb the repose of the great majority. Let us not deceive ourselves; force and its consequence, success, dazzle men; and bold acts 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 and sympathy, if its object be sagaciously chosen. Most of ‘the people out of doors,' who gave a thought to the sentence on Edward Floyd, probably said that he was rightly served for being a bloody Papist. The imprisonment of the Sheriffs in their year of office, was a good joke for some in 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 history of human nature. That it exists, all experience proves. The cruel punishments of Prynne and others in the reign of Charles I., excited more scorn against the sufferers who were made ridiculous, than indignation against their hateful oppressors. This is the direction in which the current of satire is too ready to flow. We noticed in our last Number the proud triumph achieved by the true patriot, Daniel De Foe, when, sentenced to the pillory for his virtue, he was greeted by the disabused people with applause, instead of being covered with insult. But we had also to record of a man of letters, a wit, and a divine—no meaner judge of human nature than Jonathan Swift—that he speaks of this same man with contempt, because he had been in the pillory. The lesson is taught by him, qui nil molitur inepte, when his hero, Jack Cade, wins the hearts of his followers by establishing the privilege of uttering bad grammar; and condemns the Lord Sands (after a suitable admonition) to be hanged with his pen and inkhorn about his neck; for the enormity of talking of a noun and a verb, and such heathenish sounds as no Christian ear can endure to hear. And it is this evil principle which gives importance and value to a system of fixed laws, administered by known and responsible officers, in preference to summary jurisdiction, to be exercised at discretion by that 'tyrant majority,’ which is so often tempted to throw aside all the restraints which reason and justice would impose. No single instance occurs to our recollection, of a member losing the favor of his constituents for a corrupt vote on an election petition; or an absurd one on the privilege of staying actions against members of parliament; or a tyrannical one for expelling a member, or imprisoning a supposed delinquent. Even the proceedings against Wilkes, with all his popularity, do not appear to have led to such a result. Public opinion was at the moment, indeed, strongly excited; it was almost goaded to madness and rebellion. But other subjects engrossed attention, and this wrong was no more avenged than it had been prevented, by public opinion. The late votes against Mr. Stockdale and the Sheriffs were never brought up at a contested election; yet disapprobation of the measures was manifested by the verdicts of successive juries, whose English hearts burned within them,-inflamed by the single thought, that Privilege was assuming to overrule the Law; and who awarded large and increasing damages in actions most unreasonably brought, though no personal or party feelings were engaged on either side of the quarrel. Public opinion, then, though it may find some irregular means of venting its anger against oppressive and unjust proceedings, sometimes at the hazard of general tranquillity, does not, and for obvious reasons never will, administer that legitimate check and control over them, which is appealed to as the only barrier for the protection of the people against abuse of privilege; much less will it give redress to the injured. The unfortunate difference between the House of Commons and the Court of Queen's Bench was brought to a conclusion by an Act which gave to both Houses Vol. VIII.-No, I, 38

of Parliament the power of publishing any paper, upon their own views of expediency or necessity; and of protecting their publisher from actions for libel by the certificate of their Speaker—informing the court where such action might depend, that the publication was by such authority. This Act originated in the Lower House, and is well known to have owed its success in the House of Lords mainly to Lord Denman; who supported it there against a strong opposition, and extended its provisions (as common justice required) beyond the immediate agents of either House, to all publishers who should circulate true copies, or faithful abstracts, of papers which had been printed by its authority. The advocates of uncontrolled Privilege consistently opposed this Act, which was regarded as a compromise, and were naturally disgusted with so fatal a blow to their claim. For they perceived that a sole jurisdiction of declaring what privileges they pleased, with an allsufficient power to enforce their declaration, is utterly repugnant to their submitting to ask assistance from the other two branches of the legislature for that purpose. In passing the Act of Parliament, it was taken for granted that private feelings would be considered in these publications, and that nothing injurious would be sanctioned without an ascertained necessity. This must have been at all times the wish of honorable men, engaged in inquiries connected with great public interests, and unbiassed by personal motives. Publicity, in its general results, is undoubtedly the friend of truth; it is, moreover, unavoidable in matters of general concernment. Even where it brings out the names of private individuals, it affects them much less than they themselves could expect; since due allowance is made for ex parte statements, character cannot permanently suffer without a full investigation, and the most careless have been taught to suspend their judgment till all the evidence is laid before them. The Act protects none but those who print by the authority of either House of Parliament, and thus enables a sufferer to proceed against the informer who has falsely accused him. The false accuser is dragged into the light by its operation; and to him it holds out no indemnity. Suppose, then, that a malignant enemy, or an interested competitor, plans the ruin of an innocent man by slander; and finding a parliamentary committee engaged in some inquiry connected with his office, his trade, or his profession; and knowing the good opinion of certain respectable members of the committee to be important to his success in the world, to his character and general estimation, he is tempted to come before them with calumnious attacks: certain that these will be whispered about in society, that probably they may find their way into a Blue Book, and be proclaimed to all who take an interest in the subject, at the public expense, and under the most venerable public sanction. A friend who heard the statement, draws to it the attention of the injured man—informing him that his reputation is gone for ever, unless he promptly refutes the slander. Conscious of his innocence, able to demonstrate the falsehood of every allegation against him, furnished also with proof of the malice of his adversary, he commences an action against his false accuser—not against the printer who has been ordered to record his testimony, but against the inventor of a lie that may work his ruin. Suppose this case, and that the defendant should apply to the House of Commons, and charge the plaintiff with breaking its privileges. The answer most naturally to be expected a priori from the House, is scorn and derision. Or, indeed, the member to whom the petition was confided, might with propriety spare the House all trouble ; and at once tell his constituent, that to his case no considerations of privilege could possibly attach. “What l’ he might say, ‘do you admit that you have been uttering falsehood from malignant motives, wronging your neighbor, deluding the committee by misrepresentation, (itself a high contempt,) and inducing the House to circulate your slander through the country at a halfpenny a sheet 1 and do you think that the House will screen you from the just reward of your wickedness? The very supposition is a libel on the House. Rather fly from the wrath that awaits you at the hands of those whom you have thus betrayed into the commission of an outrage, which never can be repaired but by the action you complain of.” If the defendant should protest his perfect innocence, and affirm that he has candidly stated the truth, and innocently afforded valuable information tending to the redress of a public evil, the answer is equally obvious—‘This is no matter for petition; the House neither can nor ought to interTere, having no means of judging between

you, no power to do right to the plaintiff if injured by false charges, nor to you, if you have acted honestly, and are attacked for telling the truth. This interference with the complaint preferred against you can do you no good, unless that complaint be well founded; if it is groundless, the action brought enables you to windicate your veracity and public spirit in the only effectual manner, in open court, by the verdict of a jury given after hearing evidence on both sides.’ Yet we find it recorded in the journals, that a person who complained of such an injury, and brought his action for redress, was threatened with the displeasure of the House of Commons, and the punishment consequent thereon; and both the plaintiff and his attorney were frightened into an abandonment of the action. The public took no alarm, for the general mind was wholly occupied with gainsul speculations. Some few thinking men observed the vote with anxiety, and soon more materials for wonder were afforded them. For another humble suppliant bowed himself to the ground,-notifying to the House that he had received an injury of the same nature— that his name had been fraudulently signed to a false petition—that his character was suffering from this unauthorized act, almost amounting to forgery, and could be justified by no other means than bringing an action. Such, however, is his veneration for the great assembly which has given publicity to the libel, that he will not think of invoking the aid of the law without the previous permission of that assembly; and so entire his confidence in its justice, that he is certain that the permission will be granted. We are told that his earnest petition for an object apparently so just and reasonable was rejected with menaces. The precedent so lately set was likely to be followed in the Upper House, if similar circumstances should appear to make it applicable ; to hesitate where the Commons had acted so promptly and decisively, might have implied a want of proper spirit. We must confess that the petitioner, the party sued, was ushered in before their lordships in the most favorable manner. His sponsor was the Duke of Richmond, a nobleman more elevated by his qualities than even by his high rank, whose approbation is praise. He was introduced as a veteran soldier, who, like the Duke himself, had served with reputation under the Great Captain in Spain and at Waterloo; as one whose military ser

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