law in our Courts of Justice. And here, in the first place, we would state our strong sense of the unfortunate position which this question has assumed. The disagree ment that has arisen is in itself a great calamity. It is a lamentable thing if a Court of Justice has denied the existence of a real Privilege of Parliament: or if the House of Commons has asserted as a right that which the Courts can justly refuse to recognize.

But if the reports obtained through the ordinary breach of privilege may be trusted, strange misconceptions appear to have been engendered in the heat of controversy, and to have taken possession of some superior understandings. The controversy has been regarded by many as a struggle for political power. A foreigner might have imagined that two great rival bodies in the state were contending for the same authority, and aiming to secure thereby a preponderance in the machine of government-as if the House had, in direct terms, insisted on the right of inspecting and reviewing all the judgments of all the Courts; or the Queen's Bench had affected to impeach ministers, or grant supplies, or decide on a disputed right to sit and vote in Parliament. An opinion was growing that the Court was obstinate and presumptuous; and that as the weaker body it ought, by reason of its comparative weakness, to have abstained from disturbing the public tranquillity, by yielding up with a good grace the point in dispute.

Cases may well be conceived, in which they would address the Crown to make compensation to the injured man; others, in which there would be no injustice in leaving their officer to abide the consequences of his own misconduct.

But the Court is in no sense a party. The parties in the late proceedings were those whose names appeared on the record as plaintiffs and defendants in the respective actions. The House of Commons elected to become a party, by a process not unlike that of interpleader, taking up the defence of its agent and officer. The Court put forward no claim whatever. Being set in motion by the ordinary means, it attempted to do no more, and it could do no less, than exercise the jurisdiction entrusted to it by the law and the constitution. It could not prevent the plaintiff from suing out his writ of summons, or filing his declaration, or demurring to the defendant's plea, or demanding judgment. The Court can never be a party. Individual judges might be made parties against their will, if they incurred the high displeasure denounced, by being involved in the penal consequences flowing from it; as we commonly style the convict a party to that process which may terminate in his imprisonment, exile, or death.

In the case where judgment was suffered for want of a plea, the Court was merely passive-an instrument in the plaintiff's hands for obtaining the damages awarded A very little reflection must explode this by a jury, as ignorant of what was passing fallacy. The House of Commons, like in its name as the steam is of the progress every other privileged body, may exercise of the train. So when the defendant pleadits judgment on the propriety of acting at ed the privilege of the House of Commons any particular crisis. Both Houses wilfully as his justification, and the plaintiff by his connive at a daily invasion of an undoubt- demurrer questioned its sufficiency, the duty ed privilege committed by every newspaper imposed on the Court was different, but was in publishing their debates. They may in the same degree clear, restricted, and inalso imprison for a libel, or forbear to im- evitable. Their duty was to hear what could prison, as, on a view of all the circumstan- be urged by Counsel on both sides, and deces, they may think fit. Under the recent termine according to law-that is, to the Act, if a bookseller were sued for some-law as it existed in their own opinion, and thing contained in a Blue Book, the House not another's. Each party had a right to would have to consider whether they ought require them to form this judgment, and to to direct the Speaker to send his certificate declare it. Some distrust of their own first o a Court of Law. So, if it had been impressions may have been inspired by the made clear to the House, that the plaintiff opposite views proclaimed in an assembly Stockdale had really suffered in his charac- so enlightened; but they could no more ter or fortune by a publication culpably deprive the plaintiff of that benefit-which, negligent; or that the plaintiff Howard after full consideration they were convinchad been needlessly annoyed by the Ser-ed the law conferred upon him-than the geant-at-arms in the execution of his war- Prophet of the Lord could utter any other rant; the House might have declined to words than those which his great Master interfere in behalf of either defendant. commanded.

A distinguished member of the the legal Among the dicta of Judges, cited on the profession from our own part of the island, argument, was one in the time of the usuris reported to have expressed, in the House pation, when the Upper Bench refused to of Commons, an opinion, that a Scottish discharge Captain Streater on his habeas court, if placed in the position of the corpus; simply because he had been comQueen's Bench, would have given way. mitted by order of the Parliament. Some We hope that he did not profess that senti- one must be master,' said the Chief-Justice. ment, and believe that it is unfounded. It And no doubt, in every state an ultimate would exhibit a distinction between the arbitrary power without appeal must, under Courts sitting in London and Edinburgh all governments, somewhere exist. The not very honorable to the latter. At least question is, where? The answer of all we are certain that so learned and honora- dispassionate inquirers can be but one-in ble a person, if, when holding a judicial the three Parliamentary Estates of the realm seat, he shall be tried in so severe an emer--in Queen, Lords and Commons. It is gency, will find that he cannot act upon his grasped by one in the name of Privilege, own doctrine. Should he in the seat of as it had formerly been by another in that justice be threatened with the displeasure of prerogative. The constitution has lodged of the Crown or of the Parliament, in the the sacred deposit of sovereign authority in event of his coming to a particular deci- a chest locked by three different keys, consion, he will answer, 'It is not necessary fided to the custody of three different trusfor me to please either Crown or Parlia- tees. One of them is now at length, after ment, but it is necessary for me to do my ages of struggle, effectually prevented from duty. I can listen to no expression of acting alone; but another of the two is said voluntas pro ratione. It is for the purpose to enjoy the privilege of striking off the of controlling that will of another, that my other two locks, when, for any purpose of reason is called upon to decide.' The im- its own, it wishes to lay hands on the portant principle requires to be frequently treasure. asserted-more especially in these days of compromise that judicial duties are not vicarious, and cannot be delegated. Parties may waive their rights, rather than suffer an inconvenience at their own mere option; with Counsel and Attorneys the question of casuistry may strike different minds in different points of view; but the Judge cannot run away from his duty, or leave it to other hands. A perusal of this now voluminous controversy, shows that the Judges thought it had reached a point in which only one decision was possible; as soon as the doctrine by which alone the defendant could succeed, appeared to be at open variance with first principles. When they found his justification to rest not on the long enjoyment, the expediency or necessity of the privilege, but on the fact that the House declared it to be a privilege, they thought their own task ended; and anticipated the concurrence of all who knew that we live under a system of laws, and are subjects of a mixed government. For here,' (as more than one of them distinctly intimates,) we find a direct claim of arbitrary power for one branch of the legislature, which implies the entire subversion of all law.' This looked like a reductio ad absurdum-a bar to all further argument; the proposition was stranded, nor could law or common sense float it over such a shoal.

The argumentum ad hominem was clothed in various disguises. You yourselves, ye judges of Westminster Hall, enjoy the arbitrary power that you would condemn. Your decrees are final, the execution of them is without appeal; and, furthermore, they are frequently wrong, for they are reversed on error.' An arbitrary power in the judges! bound as they are by statutes and rules, by authorities, precedents, and forms; their judgments reversible by two successive courts of error; their members subject to impeachment for malversation and oppression; and to removal for ignorance or incompetency, for partiality or intemperance, or indiscretion, or any ill quality that can impair the usefulness or efficiency of a magistrate!

But then, it is said, the course of study which lawyers must pursue, disqualifies them from comprehending these high matters. Their habits cripple the mind and weaken the perception. Privilege is understood by few; its mysteries can only be fathomed by a reach of thought, not to be expected from professional men. It is too wonderful and excellent for you-you cannot attain unto it.' The faculty is confined to the members of either House, and need not be sought for, as it cannot be found, beyond their walls.

We have heard such remarks gravely

out their habeas corpus when imprisoned by the King for words uttered there in debate. Never let it be forgotten, that by the opinion of a majority of the Judges, when holding office at the will of the Crown, the King could impose a tax of his own single authority, and rule the land without any Parliament.

Lord Holt's conduct was as different from theirs as honesty from servility, or light from darkness. When John Paty was brought before him, imprisoned by the House of Commons for the crime of bringing a lawful action, he thus expressed himself-'I will suppose that the bringing of such actions was declared by the House of Commons to be a breach of their privilege, but that declaration will not make that a breach of privilege which was not so before. But if they have any such privilege, they ought to show precedents of it. The privileges of the House of Commons are well known, and are founded upon the law of the land, and are nothing but the law.' In another part of his admirable judgment, 'I shall,' he says, 'presume to maintain that here is no privilege broken, for I take it for granted that privilege is stated and settled by the law of England, and is not an uncertain and undefinable thing.'

made, with the sincerest respect towards the Commons staying an action from imthemselves, and to the disparagement of proper motives; others have refused to others, by some such men as would have liberate members of Parliament, who sued supplied Shakspeare with additional dicta to enrich the illustration of his dignified favorites, Dogberry and Shallow. The solemn and empty formality of some, who lamented the narrow-mindedness of the judicial body, has given their sentiments the appearance of too bold an irony. But, to treat this topic practically, it must be admitted that in fact the subject of these debates is, for the most part, avoided by the statesmen, the merchants, the landed proprietors, and left to the lawyers; to that very class whose disqualification, from professional habits, is thus assumed. We think it rightly left to them, as most conversant with the discussion of such principles; all the more if they have also enjoyed a seat in the House of Commons. But in that case we might respectfully ask, why such persons, after they had passed the best twenty years of life there, are to be suddenly denuded of all that could be learned there, on being promoted to the Bench; and why a younger lawyer, by any means which can obtain him a seat in Parliament, before his studies have terminated, or his practice begun, becomes suddenly endowed with the gift of penetrating these mysteries? There is no mystery in it. We have no College of Augurs in St. Stephen's-no freemasonry envelopes the archives. When These sentiments are not the emanations Privilege comes under examination, we all of a feeble or narrow mind. Such epithets have equal access to the same sources. might perhaps be more justly applied to We resort to the same books, which open those who forget that the laws were entrustof themselves at the same well-known pas-ed to their administration for the protection sages. If, in ancient times, some of the of the people against all arbitrary power, by Judges have addressed the legislative bodies whomsoever assumed or threatened. in tones of self-abasement on the one hand, and of reverence, approaching adoration, on the other, to avoid the embarrassment, and perhaps the danger, of interfering when Privilege was named, others, in the very earliest times, have fearlessly proceeded to examine and decide upon it. This is abundantly exemplified in Mr. Justice Holroyd's learned discussion of the case of Burdett v. Abbott-one of the ablest, clearest, and fullest arguments ever addressed, even by that great lawyer, to a Court.

If some Judges have been disposed to compliment away the liberties of Englishmen to either House of Parliament, it is no more than others did in evil times, to conciliate the favor, or avert the high displeasure of the Crown. If some have refused to suspect the possibility of a majority of

Such epithets might with more propriety, though perhaps not without irreverence, or even danger, be transferred to those who have employed language so unworthy of their stations; or to some who have thought to build so wide a superstructure as arbitrary power on so minute a basis, and who, in a dream of self-complacency, have fancied

*He illustrates this by well-known examples. Privilege does not extend to treason, felony, or breach of the peace, nor did (till the decision of the House of Commons against that of the Court of Common Pleas) to libel; from the time of Wilkes's arrest till the Rockingham administration was appointed. The privilege of the Houseof Lords to fine for contempt, is not shared by the definite time, the latter only during a session. Commons. The former may imprison for an inThe former can examine upon oath, not so the latter.

which unites the advantage of consulting all the judges of the land, with that of a forensic discussion by the first and ablest advocates, after all the materials have been frequently examined, and full time has been employed in maturing its deliberations. That high tribunal being also a House of Parliament, interested in maintaining all just privileges, and bound in duty to preserve them.

that their own powers could be enlarged though unpalatable to the most powerful beyond all control, and the essential boun- assembly in the kingdom, perhaps in the daries of the constitution removed by ex-world, acquiesced in and unchallenged; pressions like these, however frequently neither impugned in the Exchequer Chamrepeated. ber, where ten additional judges might have It is not unworthy of notice, that the been called in to reconsider what was done great case of Stockdale v. Hansard, which by four in the King's Bench; nor submitprincipally brought the present subject un-ted to judicial scrutiny in the high tribunal der general discussion, presented perhaps as many obstacles to the reception of our general views, as any that could have been imagined. It was an action for libel, and excited that sensitive jealousy in the public mind, which keeps guard over the freedom of the press. Moreover, the doctrine there maintained, appeared likely to prevent the circulation of important knowledge. Thus the literary public, happily now almost the entire public, took an alarm which would Strange to say, this very advantage was by be merely absurd with reference to false some treated as an argument against bringwitness before a committee. That the de-ing a writ of error. What! can it be encision of the court was correct in law on dured that the privileges of the Commons the minor point, whether the privilege of of England should be placed under the conpublishing afforded protection to the agent trol of the Lords?' The answer is clearof the House of Commons for a libel upon that consequence must attach on any proa private man, has hence been doubted by ceeding at law, in which a claim of privisome-who overlooked an obvious distinc-lege can fall to be considered in a court of tion between the freer circulation of every justice. Unless the words of the resolution kind of knowledge, which has become habitual and almost unavoidable in modern times-and the claim of a privilege to communicate documents to the public, in exercise of the real functions of Parliament.

forbidding Privilege to be brought under discussion or decision are to be so literally construed, that the Speaker was wrong, when sued by Sir Francis Burdett, in defending himself by the plea of privilege; and unless Mr. Hansard was guilty of a contempt in resorting to the privilege of publishing for his justification in Stockdale's

This distinction was most clearly laid down by Lord Hale and the whole Court of King's Bench, in the case of Lake v. King, reported in the first volume of Saun-action; and unless the Sergeant-at-Arms was der's Reports, and applied by Lord Erskine, in his usual voluminous style of reasoning, to the case of R. v. Stockdale, before adverted to. Before they sent their Attorney-General to prosecute in this place the publication of answers to their charges, they should have recollected that their want of circumspection in the maintenance of their own privileges, and in the protection of persons accused before them, had given to the public the charges themselves, which ought to have been confined to their journals. The course and practice of Parliament might warrant the printing of them for the use of their own members, but here the publication should have stopped, and all further progress have been resisted by authority.'

wrong in pleading the Speaker's warrant to Howard's late action of trespass, (which would be difficult to assert, seeing that the House of Commons directed this course to be taken in each of these actions, and in the last has actually sued out its writ of error,) the court must give some judgment on the record before them; and either party must have the right to submit that judgment, whatever it may be, to revision in a superior court. Thus, if the Queen's Bench had decided against the plaintiff, he, like Sir Francis Burdett, might have endeavored to obtain a different decision from the House of Lords. On that occasion Privilege was allowed as a legal defence; but many of the most enlightened friends to the constitution were much more disposed to lament, with We do not, however, propose to argue Sir Samuel Romilly, the summary prothe doctrine there laid down, after the full-ceeding out of which the action grew, than est consideration. It is established and to wish for its extension or repetition. Say must be received as good law, since it was, what we will respecting the obstructions

that libels may produce, the union of so and the intrepid guardian of popular rights many offices in one body, acting as lawgiv-against the usurpation of the Crown, we er, prosecutor, judge, jury, and executioner, may be sure that its aid will be invoked, if under circumstances, too, where the worse arbitrary designs should be entertained. the libel the greater heat must be excited We affect no apprehension on this score at -has something scandalous in its aspect. the present moment; but we cannot forget If it is not inconsistent with justice-the that, in all the strong operations of Privifirst requisite of penal visitation in a civili- lege during the last hundred and fifty years, zed country-it can hardly command that it has worked the will of the Ministry for freedom from suspicion, and consequent the time being; thus engrafting on powers public satisfaction, which is the second, but carefully restricted by law an unlimited almost equally important object. And when power, in the name of Privilege, to accomeach one of the inferior Courts, trusting to plish any object of the Crown. their character for its own vindication, had for near a hundred years discontinued the proceeding by contempt for libel, which the Commons' Committee urged as their precedent-it seemed unfortunate that the popular branch of the constitution resorted to physical force, guided by no other impulse than its own sense of the injury.

If the House of Commons had declared General Warrants lawful-still more, if they had addressed the Crown to issue them for the effectual suppression of John Wilkes and his libels-he might possibly have been punished for questioning their legality af terwards in the Courts of Justice. The same thing might happen whenever popular All, however, will admit, that between feeling should be strongly excited. For summary punishment for acts really offen- example, if a foreigner or a subject were sive and contemptuous towards the House now minded to question the legality of open-and the stay of actions between two of ing letters at the Post office, by Government her Majesty's subjects, brought for deter-authority, some means for crushing the inmining their private rights-no comparison quiry, by the intervention of Privilege, might can be drawn. If the officer or agent of the be dexterously employed. In like manner, House is always to be thus protected for if some antique remnant of feudal sovewhat he does in that capacity, we would reignty should be set up by the crown, either humbly ask, whether a stationer dealing in its own right, or as appertaining to the with Mr. Hansard in the articles of his Duchies of Lancaster or Cornwall, the subtrade, on the one hand, and the Blue Books ject who should, either by action or by plea, on the other, must be restrained from assert an opposite right, might find Sir W. bringing an action on the balance, or filing Gossett an unexpected visitor at the consula bill for an account? The attorney or the tation, and himself, his counsel and attorcounsel, who felt a prudent regard either ney, suddenly lodged in Newgate; while for the client or for himself, taking warning the Crown would thus travel to a favorable from the recent votes, would assuredly ad- termination of a legal point by a short road, vise him to sit down with his loss. And if more royal than royalty itself. plaintiffs may be restrained from commencing actions, it must be equally proper to restrain the parties sued from resisting them. The arm that annihilates the right to sue, cannot be so shortened as to leave the same person free to defend, when the same point is in issue.

One view of the subject, and a most important one, is taken by Lord Brougham, which received no answer from the Privilege party. How, he demanded, can you effectually protect your witness from an action? You may commit the plaintiff, and his attorney or his counsel, but that does not put an end to the action. You may order the defendant not to plead, but the action goes

We have already glanced at one subject which cannot be too seriously considered. It has not escaped Lord Brougham, but oc-on; the plaintiff obtains unhesitatingly judgcupies a prominent place in his Protest. ment for want of a plea, and a writ of inWe mean the fact, that, in modern times, quiry ensues, damages are assessed, and exethe Minister and the majority of the lower cution is levied. Nay, even if the Judges are house of Parliament are of necessity closely imprisoned, still the action survives. Nothallied-we ought perhaps to say-com-ing can more plainly show how completely pletely identified. Eadem vocabula. But these boasted privileges are at the mercy of Privilege, while it retains its name, has any who may choose to brave the Houses. wholly changed its position and office. No Now, Lord Campbell is too good a lawyer longer the bold antagonist of Prerogative, not to feel the inconvenience of this dilem