ed against the proceeding; they did not be reconciled, and were protected by its adopt it till a committee had examined and various clauses,-reluctantly submitted to, reported on the precedents connected with by reason of the opposing influences. Withthe subject. Their report will be noticed out mutual sacrifices, the bill must have hereafter. The cause of alarm is greater been thrown out. The battle was obstifrom the powerful opposition offered to the nately fought, but has been lost; or rather vote by Lord Brougham, whose speech is the law is the fruit of negotiation and combefore us. We much regret that the argu- promise. The law has settled the question. ments by which he was answered, have not but what if, afterwards, either of the extinbeen also published with the authority of guished interests should be patronized by those who advanced them. Privilege? What if either House should resolve that the subject-matter was of its own exclusive cognizance? That the construction of acts relating to it, or of all such clauses, or of all railway acts, belonged solely to its jurisdiction? That if any suitor proceeded to enforce the right given him by the law, he and his counsel and attorneys should be sent to prison? That the judges, who, in the execution of their duty dared to decide on the point, should share their fate? His Lordship's Protest does not allude to any formidable resistance by argument from the supporters of the vote; and we think that he is likely not to have passed over in silence any strong point in the pleading of his adversaries. We have some reason to think that many of those who had concurred in the resolution, were of opinion, too late, that they had done wrong; not only in proceeding so hastily in a matter so important, but in arriving at the conclusion which was adopted. At all events, we are satisfied that public opinion must be directed by this valuable document to the imminent and extreme danger to which important rights and interests stand exposed. The advocates of Privilege will condemn the very supposition as monstrous. They admit that such a course would be wrong, and for that reason could not be taken. This is not what they wished or intended, For the truth can no longer be veiled nor any thing at all resembling this. They from sight by mysterious generalities; we only wished, modest and considerate as they are distinctly warned-should we not rather are, to set up an arbitrary, unlimited, unsay threatened? Members of Parliament, controllable power. Hear what was said in both its chambers, high in office and by one of these grave judicial organs, whose eminent in station, conspicuous for talent, encouraging and reiterated dicta were the distinguished in those professions which food on which these swelling pretensions exercise most influence over the communi- fed. In the reign of Queen Anne, Mr. ty-men differing in all political opinions, Justice Powys, differing from the Chiefand connected with every party-have for Justice, as his other two brethren also did, the first time united their voices in main- thus deals with one of the objections to the taining this proposition,-that Englishmen warrant issued by the House of Commons are hereafter to enjoy their liberties, their for the imprisonment of John Paty. The properties, and their reputation, not accord-second objection is, that if this court cannot ing to the rules of any known law, but at judge of the commitments of the House the mere will and pleasure of a majority in either House of Parliament. This proposition was certainly deducible as an inevitable corollary from the assertion of Privilege formerly put forth; since he who claims the right of sole judgment on the extent of his own privileges, and to declare them without appeal in each particular juncture, virtually claims authority to silence all tribunals and supersede all law. But this was reasoning and inference. The most apprehensive little expected to hear the principle boldly avowed, and to behold it in active eperation. Let us suppose a possible case under circumstances of daily occurrence. A new law has passed; adverse interests were to of Commons, and such a commitment is good, they may stop the whole course of law, and take upon them a despotic power. But this is a very foreign supposition, and ought not to be said by any Englishman. The House of Commons are a great branch of the constitution, and are chose by ourselves, and are our trustees; and it cannot be supposed, nor ought to be presumed, that they will exceed their bounds, or do any thing amiss.' And such language has been employed during the late controversy. Do not be so uncharitable as to fancy that we shall abuse an arbitrary power: we want nothing but the use of it. We do not propose to discuss the question whether arbitrary power can be safely 1 always profligate and unjust in the greatest possible degree. During all Richard II.'s reign, all Henry VI 's, all Edward IV.'s, and VII., they blindly followed the dictates of the Richard III.'s, up to the accession of Henry faction which had the upper hand-the prince whose success in the field had defeated his competitors, the powerful chief whose authority prevailed at the moment. The history of their proceedings is a succession of contrary decisions on the same question, conflicting laws on signing one day all the adherents of one party the same title, attainders and reversals, con to confiscation and the scaffold, reinstating them the next, and placing their adversaries in the same cruel predicament. Thus, in 1461, trusted to a popular assembly, subject to so many influences from within and from without. But we propose briefly to meet the argument by the fact the argument that no danger of abuse needs be feared, by the fact that it has frequently occurred. For this purpose we shall exhibit a list of cases, in which the English House of Commons,* acting on a claim of Privilege, sometimes allowed by law and public opinion, and sometimes condemned, has grossly perverted the privilege, as claimed by themselves a set of precedents to be eschewed: a beadroll of decisions which no honest or rational men could uphold: a series of facts dis-on Edward IV.'s victory, they unanimously graceful to our country, in which the people's own trustees, chosen by themselves, have assumed a despotic power; and against the presumption above prescribed by the reverend Judge, have exceeded their bounds, have done every thing amiss, have trampled deliberately upon the first principles of justice. We speak of times anterior to August 1841, when the present Parliament was called into existence. attainted Henry VI., and all his adherents, including 138 knights, priests, and esquires, as Lancastrian princes usurpers. A few years well as princes and peers, and declared all the after, both Edward IV. and Henry VI. were actually prisoners at one and the same time. The next year, Edward, who had not regained his freedom and his crown for many months, was fain to fly the realm, when all his adherents were attainted without exception. Richard III., notwithstanding the unusual horror excited by his manifold crimes, after a few months wearing the crown, which he had been offered by many of the Lords and some citizens and gentlemen, but by neither house of the legislature, found it quite safe to assemble a Parliament, which at once recognized his incurable title, and attainted all his adversaries. When the Earl of Richmond defeated and killed him at Bosworth, and took the crown offered him by the soldiers on the field of battle, the Parliament immediately reversed all the attainders of the Lancastrians, and declared the princes of that house to have been lawfully seized of the crown. Nay, the Commons settled tonnage and poundage on him 'The conduct of the Parliament, both Lords for life. They, however, added, as a kind of and Commons, in the times of which we have condition, in which the Lords concurred, and been treating, was as bad as possible in all to which he assented, that he should strengthparticulars save what related to their own en his confessedly bad title to the crown by privileges. The nation can never be suffi-marrying Elizabeth, the representative of the ciently grateful for the steadiness with which they then persisted in establishing their legis lative rights, and their title to interfere in the administration of public affairs. But their whole conduct towards individuals and parties, the use they made of their power, was almost Thorpe's case was in the reign of Edward IV., in which Parliament consulted the judges on the course they ought to take upon the arrest of their own Speaker; but the judges, with many professions of the most profound respect, declared that that great assembly was the best and sole judge of its own privileges. That case may be safely left to the commentaries of Lord Holt, and to the following description of the Parliaments of that time, as given by Lord Brougham, in his Political Philosophy. *This observation is confined to England. In Ireland, it is well known that the House of Commons, in the 18th century, came to a vote that any clergyman claiming agistment tithe was a traitor and enemy to his country, and to the Protestant interest. They acted on this vote: and clergymen were severely punished for claiming a property as indisputably their own, as the land that may have been vested in a railway company, by an act which received the royal assent last August, belongs to that company; or the patrimonial estates of peers and members of Parliament, to their hereditary owners. York family. At the same time, partly as a means of finance, somewhat inconsistently with their opinion of the York title, they attainted, that is, confiscated, thirty of the York party, on the unreasonable and indeed unintelligible ground of having been in rebellion against Henry when he was only a private gentleman, Earl of Richmond. But it is to be observed that the statute limiting the crown to Henry and the heirs of his body, was made by the assent of the Lords at the request of the Commons.'-(Vol. iii. p. 248.) From these unsettled times let us pass to the 17th century. Edward Floyd, in 1621, a justice of peace, and a gentleman of good estate in Salop, was impeached, before the Commons, for uttering uncivil speeches towards the Prince and Princess Palatine, . the son-in-law and daughter of King James stitutional contest, abhorrence of the judiI. His crime consisted in saying-I have cial misconduct of Jefferies and Scroggs heard that Prague is taken, and Goodman had been coupled with the wish that their Palsgrave and Goodwife Palsgrave have very names might be blotted out from the taken to their heels and ran away; and, as memory of man, Erskine exclaimed,—' No! I have heard, Goodwife Palsgrave is taken let them be held in everlasting rememprisoner;' and that these words were spoken brance! let them be handed down with shame in a most despiteful and scornful manner, and execration to the end of time !'-So let with a sneering and scoffing countenance, this hideous story of the sufferings of Edand with a purpose to disgrace, as much ward Floyd be studied as an awful and as in him lay, these two princes;' and the practical lesson! A lesson to the commulike at other times. Claiming the privilege nity, showing every individual to what he of punishing by pillory and fine, on what may be exposed by the claims of arbitrary they called impeachment, that is, an im- power;-a still more affecting lesson to the peachment by themselves as accusers be- humane, the just, the enlightened, of the fore themselves as judges, the Commons excesses of guilt and infamy into which passed a sentence, calculated to efface all they may be plunged by asserting such a memory of those misdeeds of the Star-claim. For here was no unwatched drunkChamber and High Commission Court, en rabble, no sudden impulse of excited which soon after brought about the Civil savages: we have the recorded deliberation Wars. Their resolution was, that Floyd's and the public conduct of the knights, citbody should be scourged, tortured, mutilat-izens, and burgesses; and finally of the ed, his feelings insulted, and his estate bur-brave peers of England, the most cultivated dened with a fine of £1000. part of a highly civilized nation-the That the affair, between judgment and statesmen, the lawyers, the land owners and execution, was wrested out of the hands of merchants-the peers and prelates of a the House of Commons, and subsequently country long renowned in arts and arms, disposed of by the Lords, who maintained the contemporary admirers of Shakspeare with some heat that this sentence was a and Bacon, the patrons of Milton and Waldeep infringement of their privileges, only ler;-all the leading men in a wealthy and aggravates the enormity. The Commons powerful country, which even then boasted humbly deferred to this claim: the sole that it had enjoyed for hundreds of years judges of their own privileges confessed the inestimable blessings of law and liberthat they had volunteered the exercise of a ty. power which they did not possess. They The reign of Charles I. gives cause for however entreated their Lordships, that so much reflection on the subject of Privilege. heinous an offence might not escape con- The Long Parliament met in 1640, and dign punishment; and the Upper House, passed many valuable laws. The abolition profiting by the example of the Lower,- of the Star-Chamber, and High Commission catching the infection of their Protestant Court, and of the right of the Privy Counzeal and loyal indignation, pronounced acil to try criminal matters, is enumerated still severer sentence. Their Lordships, to by Lord Brougham among the 'great and the pillory and exposure, added a whipping glorious achievements of this renowned at the cart's-tail. Some scrupulous peers, body.'* But he censures all their subsea small minority, would have excused him quent proceedings, as framed, and possithe whipping, because Floyd was a gentle-bly intended to alter the form of governman: none appear to have thought this cir- ment.' Nor can any man deny that some cumstance any objection to nailing his ears to the pillory, or parading him through London and Westminster on horseback, with a placard on his back, and with his face towards the beast's tail. Their Lordships multiplied the fine fivefold, declared him infamous and incompetent to be a witness, and directed him to be imprisoned for the term of his life. He was not, however, in fact, whipped, though in all other particu+ The Long Par ament had become executive as well as legislative, when it performed some lars the sentence was rigidly enforced. of its bo de t operations,--such as condemning When, in the course of some great con-Paul Best to death for denying the Trinity. He ༔ of their claims of Privilege were absurd— as the vote that Archbishop Laud's church ceremonies were a breach of the privileges of the House of Commons; some treasonable as the votes to levy an army against the King-if the constitution was considered as resting on its lawful basis.† * Pol. Phil. Vol, iii. p. 276. thing prove it more strongly, than that the House of Commons elected in 1679 proceeded, almost immediately on their meet The defence of the Long Parliament is, that the King's violations of the law had thrown the constitution off its bias, and proved his determination to rule independ-ing, to punish their fellow-subjects who had ent of all its checks and controls. If they were justified in foro conscientia for their resistance to this overstrained usurpation, under the name of prerogative, by opposing to it the only power they possessed-or rather by setting up a power never used before, and investing it with the venerable and well-known name of Privilege-their proceedings with that object can furnish no argument for the extent of power which the laws and constitution will recognize in peaceful times. exercised their undoubted right of petitioning the Crown on the exercise of an important and equally unquestioned preroga tive, that of summoning a Parliament ? Such petitions were visited as a breach of the privileges of that House of Commons, which had no existence when they were preferred. That our trustees, elected by ourselves, of whom no Englishman ought to say that it is possible for them to exercise a despotic power, or do any thing amiss,' should vote a petition to the Crown on public affairs a breach of privilege, appears like an incredible fable. Numerous, however, were the victims who could attest its truth. The sergeant-at-arms seized them by the hundred, and detained them The people's representatives lodged their constituents in jail, in the name of Privilege, for daring to express their opinion on the conduct of a former Parliament. The grand-jury of Devon were thus dealt with by the House of Commons in which a Whig majority bore sway. Walpole speaks with rapturous admiration of Quin's answer to the question, By what law could they execute the King?''By all the law that he had left them. The law of necessity, which supersedes all other; the law of self-defence, of which, however till they paid money for their liberation. applied, the unjust aggressor has no right to complain. In the commencement of those troubles, if the Commons could avert arbitrary power by no other means than the pretence of Privilege-if that weapon, non hos quæsitum munus in usus, was the only one they had power to grasp-Pym and Hampden might be bound to wield it, how- In 1701, the same drama was acted, but ever repugnant to the elemental constitu- with the characters reversed. The grandtion of a mixed government acting upon jury of Kent ventured to approach the known laws; yet the shades of these great House of Commons with a strong remonmen have been preposterously invoked, as strance against the Tory government of giving a sanction to interference with Queen Anne, for deserting the policy of the administration of the laws, in the days King William and his Whig ministers. of King William IV. and Queen Victoria. For presenting this petition Mr. Colepeper Rulers and subjects may draw lessons of was imprisoned till the end of the session! public morality and expediency from these What must be said of these proceedings? tumultuous periods; but they furnish no Were they altogether an abuse? Did the precedents that can be applied when the House at those different periods assume a empire of the law is re-established. The privilege which they did not possess-a establishment of that empire, secured privilege inconsistent with their primary by the independence of the judges, is per-duty, that of redressing the grievances of haps the most legitimate object of those the people, which can be known by no other struggles, and the prize not too dearly bought by all the horrors that accompanied them. They had hardly ceased during the reign of Charles II., or, if it might be truly said that the storm had susided, means so well as by their petition? Or did they but abuse the privilege of committing for contempt as a punishment for libels? Of the inquisitorial functions of the House of Commons we hear much, and all Englishmen hear it with pride and satisfac-'if the terror of the times was past, tion. These functions have been so exerThere still remain'd the scatterings of the blast.cised as to produce examples of signal benefit to the country: their existence is The unsettled opinions of men, and the violent contention of parties, often shook no mean security against flagrant misgovernment. Information must often have the tranquillity of the state. Could any was executed by virtue of an ordinance in 1646, not under a vote for breach of privilege. 4 proceeded from polluted sources; but the House were not answerable for its truth, or the respectability of witnesses: they were 6 PARLIAMENT AND THE COURTS. bound to receive all that was offered, and curred one hundred and seventy years beThe Commons, in an appeal fore, and exhibited some most singular features. case between Shirley and Fagg, and in two or three other cases then pending, asserted a privilege which they had claimed before, but have not always maintained. They resolved that the Lords had no right to decide appeals from courts of equity, where members of the Lower House were parties. Af terwards, they threw down this too invidiup ous distinction; and declared that the their Lords had no such right when any commoner was a party. They followed solemn resolution with one of the gravest import and most practical character, menacing the legal agents of parties prosecuting such appeals with their highest displeasure: But the Commons were not satisfied with Whoever shall solicit, plead, or prosesecuring the custody of these secret denun- cute any such appeal against any comciations. They printed, published, sold moner, shall be proceeded against as a beOne of the best them for money, sanctioned by the signa- trayer of the rights and liberties of the No doubt, the people of England.' ture of their Speaker. price was moderate; and a handsome dis- speeches ever delivered in the House of count allowed the Trade to make large Lords, was made by the first Earl of Shaftespurchases of this foulest of all libels. And bury in support of the judicature of the The Lordst had formerly tain what manner was the revenue thus raised Lords, and against the interference of the to be employed? The profits of the sale Commons.* were given to the slanderer!-a premium ken notice of the imprisonment of the four on secret falsehood, a temptation to other counsellors, and resolved it to be an ununprincipled men, a prejudice to the fair- exampled usurpation and breach of priviness of that trial which would have ensued lege against the House of Peers.—a tranif they had dared to test the truth of the ev-scendent invasion on the right and liberty of the subject, and against Magna Charta, many idence by an open impeachment. the Petition of Right, and laws, which have provided that no freeman shall be imprisoned, or otherwise restrained of his liberty, but by due process of law.' other The attorney-general afterwards prosecuted Sir William Williams, the Speaker, who, by order of the House, had published Dangerfield's information. He was convicted, and fined L.10,000, (of which he is said to The Commons acted up to their recorded have paid L.8,000,)-his plea of parlia mentary privilege being overruled by the resolution, and sent four counsellors to court. The Earl of Peterborough, calum- prison for discharging their professional niated in the same document, brought his duty. These gentlemen sued out their haaction for libel against the Speaker, who beas corpus, but were remanded by an obdid not attempt to set up the claim of Priv- sequious court of law. They questioned ilege in this civil action, but suffered judg- the legality of this remand by a writ of erment by default, and had to pay considera-ror, which must have come on for decision ble damages. And these judgments were in the House of Lords. To avoid the emnot reversed or questioned in any court of barrassment and scandal of the collision, error; nor so, as many others were, con- the Crown was driven to postpone all pubdemned by the Parliament of King Willic business, and prorogue the Parliament, liam. No argument is required to prove that this series of proceedings was an outrageous ABUSE of one of the most valuable privileges entrusted by the constitution to the House of Commons. Interference with the course of justice was not reserved for the year 1845. It oc The very same series of as a lesser evil. proceedings was repeated, in the same order, in the following session. Some of our readers will probably first become acquaint |