the pillory. The lesson is taught by him, of Parliament the power of publishing any qui nil molitur inepté, when his hero, Jack paper, upon their own views of expediency Cade, wins the hearts of his followers or necessity; and of protecting their pubby establishing the privilege of uttering bad lisher from actions for libel by the certifigrammar; and condemns the Lord Sands cate of their Speaker-informing the court (after a suitable admonition) to be hanged where such action might depend, that the with his pen and inkhorn about his neck; publication was by such authority. This for the enormity of talking of a noun and Act originated in the Lower House, and is a verb, and such heathenish sounds as no well known to have owed its success in the Christian ear can endure to hear. And it House of Lords mainly to Lord Denman ; is this evil principle which gives importance who supported it there against a strong opand value to a system of fixed laws, admin- position, and extended its provisions (as istered by known and responsible officers, common justice required) beyond the imin preference to summary jurisdiction, to mediate agents of either House, to all pubbe exercised at discretion by that 'tyrant lishers who should circulate true copies, or majority,' which is so often tempted to throw faithful abstracts, of papers which had been aside all the restraints which reason and printed by its authority. The advocates of justice would impose. 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.

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. In passing the Act of Parliament, it was Public opinion was at the moment, indeed, taken for granted that private feelings strongly excited; it was almost goaded to would be considered in these publications, madness and rebellion. But other subjects and that nothing injurious would be sancengrossed attention, and this wrong was no tioned without an ascertained necessity. more avenged than it had been prevented, This must have been at all times the wish by public opinion. The late votes against of honorable men, engaged in inquiries Mr. Stockdale and the Sheriffs were never connected with great public interests, and brought up at a contested election; yet dis- unbiassed by personal motives. Publicity, approbation of the measures was manifested in its general results, is undoubtedly the by the verdicts of successive juries, whose friend of truth; it is, moreover, unavoidEnglish hearts burned within them,-in-able in matters of general concernment. flamed by the single thought, that Privilege Even where it brings out the names of priwas assuming to overrule the Law; and vate individuals, it affects them much less 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.

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.

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 tran- The Act protects none but those who quillity, does not, and for obvious reasons print by the authority of either House of never will, administer that legitimate check Parliament, and thus enables a sufferer to and control over them, which is appealed proceed against the informer who has falseto as the only barrier for the protection of ly accused him. The false accuser is the people against abuse of privilege; dragged into the light by its operation; and much less will it give redress to the injured. to him it holds out no indemnity. Suppose, The unfortunate difference between the then, that a malignant enemy, or an interHouse of Commons and the Court of ested competitor, plans the ruin of an inQueen's Bench was brought to a conclu-nocent man by slander; and finding a parsion by an Act which gave to both Houses liamentary committee engaged in some inVol. VIII.-No. I, 38

quiry connected with his office, his trade, you, no power to do right to the plaintiff if or his profession; and knowing the good injured by false charges, nor to you, if you opinion of certain respectable members of have acted honestly, and are attacked for the committee to be important to his success telling the truth. This interference with in the world, to his character and general the complaint preferred against you can do estimation, he is tempted to come before you no good, unless that complaint be well them with calumnious attacks: certain that founded; if it is groundless, the action these will be whispered about in society, brought enables you to vindicate your vethat probably they may find their way into racity and public spirit in the only effectual a Blue Book, and be proclaimed to all who manner, in open court, by the verdict of a take an interest in the subject, at the public jury given after hearing evidence on both expense, and under the most venerable pub- sides.' lic sanction. A friend who heard the state- Yet we find it recorded in the journals, ment, draws to it the attention of the in- that a person who complained of such an jured man-informing him that his reputa-injury, and brought his action for redress, tion is gone for ever, unless he promptly re- was threatened with the displeasure of the futes the slander. Conscious of his inno- House of Commons, and the punishment cence, able to demonstrate the falsehood of consequent thereon; and both the plaintiff every allegation against him, furnished also and his attorney were frightened into an ⚫ with proof of the malice of his adversary, abandonment of the action. The public he commences an action against his false took no alarm, for the general mind was accuser-not against the printer who has wholly occupied with gainful speculations. been ordered to record his testimony, but Some few thinking men observed the vote against the inventor of a lie that may work with anxiety, and soon more materials for his ruin. wonder were afforded them. For another humble suppliant bowed himself to the

Suppose this case, and that the defendant should apply to the House of Commons, ground,-notifying to the House that he 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 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? 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.'

had received an injury of the same naturethat 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 invok-. ing 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.

We

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. must confess that the petitioner, the party sued, was ushered in before their lordships If the defendant should protest his per- in the most favorable manner. His sponsor fect innocence, and affirm that he has can- was the Duke of Richmond, a nobleman didly stated the truth, and innocently afford-more elevated by his qualities than even by ed valuable information tending to the re- his high rank, whose approbation is praise. dress of a public evil, the answer is equal- He was introduced as a veteran soldier, ly obvious This is no matter for petition; who, like the Duke himself, had served with the House neither can nor ought to inter-reputation under the Great Captain in Spain fere, having no means of judging between and at Waterloo; as one whose military ser

vice had been rewarded by a responsible of the Friday preceding; that Bell gave office in the police force; and who, in that him the umbrella, and he put it away in the situation, had collected information, which usual place; that on Friday the 23d Bell he was compelled, by an order of the served Plass, when on duty in this House, House, to lay before the Committee on the with an order from the Court to pay Bell laws against gaming. It was added on the 17s. 6d. debt, and £2, 10s. costs, for the same authority, that the information was all use of Bell.'* true, and that the action was brought against These cases could not be supposed to furhim by one who justly suffered from it, be- nish an example of staying legal proceeding guilty of all the enormities imputed. ings commenced by one slandered by false After such a description of the cause and evidence before a committee. But they must the actors, it might seem wonderful that have been thought to rest on a principle the case was not at once disposed of by which would justify a vote for so doing; acclamation-by immediately punishing and as their Lordships immediately came the breach of privilege already committed, to such a vote, we must presume that such and stopping all further proceedings. An a principle was extracted from them. By instant decision was pressed for; but the what process, we own ourselvas incapable Lord Chancellor, the Lord Chief-justice, of discovering. The last case, that of the and Lord Brougham, obtained a few hours umbrella, which was the most relied on, is of delay, that the decent ceremony of evidently a punishment for serving the prosearching for precedents might be perform-cess of the Court of Requests on one of ed before a new precedent was added to the officers of the House, while there atthem. tending its service. Most clearly, on perusing it, no other offence is charged.

The Committee reported those ' most immediately applicable to the matter of the The production of these documents, and petition. They did not cite the unrescinded of several others so much less like the case resolutions of the Lords in 1675, and in in hand, that the committee did not regard 1704, cited above; nor that which followed them, gave but a short respite to the plainLord Lyttleton's speech in 1763. But the tiff and his attorney, who were summoned, cases in point to which they directed atten- and released on their assurance that they tion, were in number four. One of them had intended and were conscious of no ofwas in 1768. Biggs sued Hope for having, fence; but that having been so unhappy as in obedience to the orders and immediate to incur the displeasure of that august ascommands of the House, taken him into cus-sembly, they would discontinue the action. tody' for riotous behaviour, which obstruct. On the motion for requiring this of them, ed the approaches of the House. 2. Hyde, the Speech and Protest of Lord Brougham a magistrate, in 1788 caused Aldern, a con- were made. They will be the text on stable, to be indicted for an assault in obey- which all future commentaries on the use ing the orders of the House, in refusing and abuse of privilege must be writtenHyde admission to Warren Hastings' trial, the treasury from which all arguments must without a ticket. Defendant had been hon- be drawn. They are too generally read to orably acquitted, but Hyde was committed be here copied or abstracted; but some obfor his contempt in preferring such an in-servations on points of detail may not be dictment. 3. Wharton, in 1826, was sum- wholly superfluous!

moned for writing a letter tending to a Adverting to the noble Duke's descripchallenge to Fonblanque, in consequence of tion of the transaction, and the parties to words spoken by the latter in arguing ait, Lord Brougham remarks, that these question as counsel at the bar of the House; might have exhibited the reverse of that he apologized and was discharged. 4. The description in every respect. Consider noted umbrella case stood last. It appears to have been thus: Frederick Plass, one of the doorkeepers of the House, complained in the Commons' Journals, in the 3d year of *A case nearly in point might have been found to their Lordships that John Bell had servWilliam III. Sir Ralph Megget petitioned against ed him, when attending his duty in this an election for Southwark, and was reported to House, with two processes from the West-have said that he was sure of a majority, right or minster Court of Requests; and Bell informed Plass that the first process was is sued to recover the value of an umbrella left by Mr. Bell with this Plass on the night

wrong. For this saying he was sent to jail. As the slanderer for falsely imputing them, and was he denied having ever used such words, he sued sent to jail a second time for this breach of priv. lege.

now for a moment how the question would cannot adopt this general proposition of have stood, if that had been the case. Sup- law till it shall be promulgated by judicial pose the petitioner to have been the keeper authority; which it never can be as long of a low gaming-house, who before a com- as an action for a malicious prosecution, mittee for inquiry into the state of the po- or for an unlawful arrest, procured by a lice, had volunteered his evidence against false oath, is held to be maintainable. Let an inspector, promoted to that station for us also observe, that this ingenious reason bravery and good conduct in the victorious is wholly inapplicable to evidence laid bearmy, but exposed to malice for the faithful fore the House of Commons, by which no discharge of his duty; and suppose all his oath can be administered. A party thus evidence to have been a base fabrication to slandered and seeking redress, is exactly in injure this honest man. All this might have the situation in which James Duke of York been the fact, but of course no word of it would have stood, if he had sued Dangerwould have transpired in the petition. The field for calumniating him, and not the truth would be made apparent at the trial; Speaker, Sir W. Williams, for printing and but, according to the practice now estab- publishing the calumny. lished, that can never take place.

In this debate, it appears to have been assumed, even by so candid and calm a judge as the Duke of Wellington, that the mere relation of a witness was enough to entitle the petitioner to the protection of the house against an action. But with all the deference and respect which is due to that great name, we must submit that the truth of the evidence is a much more important matter. The plaintiff undertakes to prove its untruth. We ask, with all humility, what right can there be to act as if you knew it to be true, and at the same time deny all means of discovering whether it be true or false?

But suppose that a person should present himself before a committee of the House of Lords, and falsely swear that A is the holder of so many railway shares, or that he has given his assent to some sacrifice of his property; by reason of which false representation, A is made liable by the Act to certain payments, or loses his land without compensation. If A should bring an action against the witness, by whose falsehood his interests are so much affected, the Court would stare at such defence as thisVery true, I have stated a falsehood respecting you, and you have suffered enormous damage from my false evidence; but that false evidence was given upon oath, and you have, therefore, no remedy against me.'

The same answer is good to the argument urged by the learned occupant of the Great Seal, and some of his highly re- If, indeed, the witness has spoken nothvered predecessors. 'We protect from ac- ing but the truth, or even if he has comtions at law, the officers of our Court who municated nothing but what he really beexecute its process.' This may possibly believes to be true, it is hard that he should very proper where you are perfectly sure be harassed by an action, and put to the that your officer has done so, and nothing more; but this is not an officer-he is a witness the plaintiff says, a false witness. You cannot know which is right without that trial, which one of the parties seeks, and the other is anxious to prevent. If perjury has been committed, the son of Belial is certainly no officer of the Court, or of the House, in committing it. On other grounds, the Protest clearly demonstrates that no analogy exists between this case and the protection of officers, or parties in the Court of Chancery.

expense of defending himself against vexatious litigation. We freely admit that no unfounded action ought to be commenced; but we as strenuously deny that it can be politic to lodge in the hands of either House of Parliament the discretionary power to prevent this evil on ex parte applications. The delays and expenses of the law are among the heaviest evils that afflict men in society. Legislators cannot be too active in devising the means of reducing them, and of discouraging all the arts of legal chicanery. The Courts themselves are asBut the intervention of the House is also tute in the application of remedies, and justified on that most suspicious ground, they ask for the means of carrying them the interest of the plaintiff himself, who still further; but allowing the mischief to must fail (it is said) because no action can exist to a grievous extent, it were a much be maintained for perjury. If so, the de- greater evil to close the Temple of justice fendant, the petitioner, is safe at all events, indiscriminately-excluding by the same however steeped in falsehood. But we act both well-founded demands and extor

tionate attempts, by prematurely crushing some breasts by nature, and others have the only means of ascertaining their true courted it successfully as a profitable speccharacter.

ulation. It is perfectly notorious, that a A criminal proceeding for perjury, an skilful watching of the Table of Terms information or indictment, is no less harass- and Returns may enable the practitioner to ing than a civil suit, and its consequences commence and conclude his action, so that may be much severer. Privilege has not the damages and costs may be levied and yet interposed to prevent it; for which a paid before it is possible for Parliament to reason was assigned in a late debate in the interfere. On their re-assembling, their Lords, that in criminal proceedings the first step might probably be to visit with Crown is a party. To this argument, as their high displeasure all who had been to many employed upholding indefinite pri- concerned in the discussion or decision; vilege, a twofold refutation may be direct- not only parties, counsel, attorneys, sheriffs ed. 1. It is not virtually true; for all the -and why not witnesses and jurors also? world knows that the Crown is very rarely-but certainly, in the terms of the resoluthe real prosecutor in such cases. Though tion adopted by the last Parliament but one, the process must issue in the name of the the judges of those courts and tribunals Crown, the real prosecutor is he whose which may have decided any matter of character or whose interest has been injur- privilege inconsistent with the determinaed by the false witness, and who deems the tion of the House.' But the object of the necessity of a public exposure a paramount plaintiff and his attorney would be in the duty, to be performed in spite of all the mean time fully attained. cost, risk, and anxiety, which belong to such proceedings. But, 2. Is the reason a good one? Is the distinction just? Is it in the genuine spirit of that Privilege, so potent for the destruction of private rights, to be suddenly paralyzed by a conflict with the Crown?

To meet this danger but one expedient can be devised. An address might be presented to the Crown, just before the usual time of prorogation-praying that Parliament might not be prorogued, but that the two Houses might adjourn. The Crown again! What if the Crown refused? What if the Lords dissented?

A remark of a more general nature must here be introduced. In case of any difficulty in the execution of any warrant issued by the House, who must supply the force requisite for that purpose? The Crown.

If the object of such prohibitory resolutions be thus questionable, the means of enforcing them will hardly appear more praiseworthy. A party is imprisoned and fined by payment of fees, that others may be deterred from asserting a just claim for redress; in perfect ignorance that he has These inconvenient consequences are violated any privilege. His attorney is sent hinted at with reluctance, and not without to jail for exercising his profession for the pain; because they might occur where advancement of justice. If he knew that Privilege was not obstructing the law, or this might be styled a breach of Privilege, squabbling with its officers, but manfully he could not know that the House would engaged in a noble and legitimate contest, think proper to take it up as an offence. in the discharge of its highest duties, and Counsel have hitherto been spared. The in defence of the real liberties of the peotimes in which we live have hitherto been ple. But they may supply forcible reasons relieved from witnessing such scenes as the for acting with caution in a matter of so House, from a sense of dignity, acted in much delicacy, and against overstraining the reign of Queen Anne, when the Ser-powers, in their own nature hard to be wieldgeant-at-arms was playing at hide-and-seek ed. And it is indisputably true, that every with eminent Barristers in the Temple cloisters; and had to inform the House that he had well-nigh caught one, who escaped at the hazard of his neck, by the help of his sheets, from a back window up two pair of stairs.

Even these harsh measures may fail to extirpate the heresy, and put down contumacy. Late experience may teach this to the most careless observer; for the disinterested love of martyrdom is implanted in

exercise of privilege which wants the sanction of public opinion, and is condemned by considerate men, must weaken its authority on other occasions, when all such would wish to see it active and triumphant.

We have just touched upon the most striking, perhaps also the most really important, part of this great subject-the relation which it bears to, and the influence which it must have upon, the administration of the