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any one might restrain the liberty of any in the debate was that of Lord Lyttleton.* other by an affidavit, the inconvenience Your Lordships will on no account dethat might probably result to a just credi-part from that maxim, which is the cornertor from the release of his debtor in a par-stone of all government, that JUSTICE ticular instance, could not be weighed should have its course without stop or imagainst the public mischief of exposing pediment. Jus, FAS, LEX, POTENTISSIMÆ every obnoxious member to arrest. The SINT. Obstruct this, and you open a door law has ever regarded this privilege as sa- to all violence and confusion, to all iniquicred. In criminal cases, where the trial ty, and to the cruelties of private revenge; and conviction of guilty men is a para- to the destruction of private peace, the dismount object, but the guilt can, in the first solution of public order; and, in the end, instance, only be suspected and charged, a to an unlimited and despotic authority, practical difficulty arises, which, however, which we must be forced to submit to as a law and privilege, through the mediation of remedy against such intolerable evils. The common sense, and with the sanction of dominion of law is the dominion of liberty. time, had well overcome. It was perfectly PRIVILEGE AGAINST LAW in matters of high understood that members might be appre- concernment to the public, is OPPRESSION, hended on a regular charge of treason, is TYRANNY, WHEREVEr it exists.' felony, or breach of the peace, AND IN NO

OTHER CASES.

These general sentiments, so just and constitutional, and expressed with such During many years of the reign of fervid eloquence, might have appeared, inGeorge the Third, the domestic history of deed, a little out of place as applied to a England is almost monopolized by the privilege which had been acknowledged to achievements of a restless and factious job- be lawful in a court of justice, and was ber, warring against an unpopular court founded on ancient practice, and on no and ministry; and their efforts to over- slight reasoning. But mark the strange whelm him. The privilege of both Houses operations of this wonderful power of priwas exerted in this warfare. Having vilege! been imprisoned by a warrant of the secretary of state, not for treason, or felony, or a breach of the peace, but on an unproved charge of libel, John Wilkes sued out his habeas corpus in the Court of Common Pleas, and was by that Court restored to his liberty; by virtue of his privilege as a member of Parliament. That privilege was allowed by Lord Camden and his brother judges, as a known part of the law of England. But no sooner did the minister find it convenient to remove an obnoxious member, than the obsequious and selfdenying, majority in derogation of their own privilege as it had always been understood, came to the resolution-That privilege of Parliament does NOT extend to the case of writing and publishing seditious libels; nor ought to be allowed to obstruct the ordinary course of the law in the speedy and effectual prosecution of so heinous an offence.'*

Having a clear right of action against the two Secretaries of State, the Earls of Egremont and Halifax, for the illegal seizure of his papers under an illegal general warrant, Wilkes brought his suit against both; as well as against the messengers and inferior officers who had, by their orders, transgressed the law. Against these agents he recovered large damages; but when he was desirous of expediting his suit against the two noble peers, who were the real culprits, he found himself fettered at every step by the privilege of peerage. This privilege interposed a check and impediment to all his movements. While they were listening to the admirable sentiments of Lord Lyttleton, and probably encouraging the orator with enthusiastic cheers, the two Earls determined to forego no means of obstruction which, as peers, they could raise. Privilege was like the seventh charmed bullet in Der Freischutz, This resolution was placed upon the ta- and gave a fatal wound to that very justice ble of the House of Lords, and their lord-of which all the noble lords were so much ships concurred in it. The great speech [enomoured. These delays prevented the

trial of either of the actions till one of them was defeated by Wilkes's outlawry, the other by the noble defendant's death;—an

1365.

See Vol. XV. of Cobbett's Parl. Hist. p.

instructive fact properly preserved by Mr. Adolphus, on the same page which had just recorded the patriotic declamation of Lord Lyttleton against offering any impediment to the free action of the law.

The House of Lords condemned another libel from the same pen as a breach of privilege. It was an indecent sarcasm on Warburton, Bishop of Gloucester, who, some years before, had published, with commentaries, the works of Pope. As an editor of that poet, and of one far greater poet, the right reverend prelate had achieved the pre-eminence of being the worst of commentators; but we must not permit ourselves to deviate into the bewitching details of literary anecdote. The complaint fell to the ground in consequence of Wilkes's flight to France.

Wilkes was destined to struggle again and again with Privilege. Being elected for Middlesex, he was expelled as a libeller; a second time, too, elected without any opposition, and expelled. Chosen a third time by a majority of more than a thousand votes, he was removed from the House, which coolly ordered the return to be amended, by striking out his name, and inserting that of his defeated opponent in its place. The freeholders were disfranchised, and their elective right transferred to that majority which Mr. Grenville had always found so willing to do the bidding of the ministers of the Crown,-by the vote of that majority at the dictation of those ministers. In vain did Lord Chatham and the whole body of the Whigs resist this notorious abuse of privilege. The privilege was to expel an unworthy member. The abuse consisted in excluding the expelled member when a second time returned by the constituent body; treating the offence of libel (of which, indeed, he had been convicted only by their vote) as a permanent disqualification. All traces of these unconstitutional proceedings were indignantly expunged from the Journals when the Whig party came into power.

The privilege of debating in secret appears to be something sui generis-something superior even to privilege itself. Under the name of a Standing Order, it has been always held to impose on the House the positive obligation of taking one step, and one only. For if any one member chooses to remark, in the Speaker's hearing, the presence of a single stranger dur ing a debate, all the business of the House is instantly suspended till the stranger is

removed: a state of things wonderfully at variance with the supposed necessity for another supposed privilege-that of publishing any paper whatever, however injurious to others, in order that the representative may be enabled to explain his own parliamentary conduct on all occasions, to his constituents.

The exclusion of strangers (that is, of reporters, for the public has no interest in the attendance of any others) has not been frequent during the last fifty years; the results have sometimes been singular. The motion is generally made, or rather the stranger pointed out by some supporter of the ministers of the day, but so injudiciously and clumsily, that these have more commonly been ashamed and annoyed than relieved. At the outbreak of the war in 1803, Mr. Fox attacked the conduct of the preceding negotiations in one of his ablest and most ingenious speeches, which was circulated in the usual manner through the country and the world. The friends of government felt the immense importance of Mr. Pitt's answer-one of his most powerful efforts, a strikingly eloquent incentive to a warlike policy; but this speech was lost to the country by the exclusion of the reporters. Again, on some complaint respecting the Prince of Wales's conduct towards his wife, an honorable member shut out the public from knowing what passed in the House of Commons by the ordinary and accurate reports of, the newspapers, notwithstanding which, a tolerably full account of the debate made its appearance; the part which every member had taken was announced to the public, and though the line of argument might be less faithfully preserved, we may be sure that no unwelcome truth was lost, nor any severe animadversion suppressed. This glaring defiance of so notorious a privilege, whether proceeding from a member or an officer, or some lurking stranger, was prudently passed over; for no less glaring was the demonstration, that in our present state of society, secresy of debate is in possible. The privilege, though still nominally existing, is practically at an end; by a whimsical reverse, it is now never mentioned in either House except for the purpose of giving additional publicity to the reports of debates in parliament.

The exclusion of strangers in 1810 was in itself extraordinary; and was followed by consequences connected with our leading argument. The people of England at

that period were ashamed and mortified by This publication was also voted a libel, and the disgrace that had fallen upon their arms the House had to consider of the writer's in the expedition to the Isle of Flushing; punishment. The Whig party, then in opand full of indignation at the monstrous position, while most of them were disposed mismanagement to which it was ascribed. to hold this privilege high, sought to bring A parliamentary inquiry was commenced; the matter to a close by a reprimand to be but the debates were kept secret. Stran- administered by the Speaker to Sir Francis gers were excluded, and some harsh re- Burdett; but the Ministers and the majority marks were made in debate on the reporters insisted on his imprisonment, and the honas a body. A club, accustomed to meet orable baronet was sent to the Tower. and discuss public measures, propounded Having in his argument denied the lawa question which reflected on the member fulness of such imprisonment, he comwho moved this exclusion, Mr. Yorke; and menced an action at law against the Speakon him also who indulged in those remarks. er for signing the warrant under which he The placard containing the question was was arrested. New debates arose. A prolaid on the table of the House, which re-posal to commit to prison the solicitor who solved to assert its dignity, and summoned had served the Speaker with notice of acthe printer. tion, was made! but overruled. It was resolved that no steps should be taken for staying the action, but that on the contrary the Speaker should appear and plead, stating the proceeding of the House as his defence, the validity of which was thus submitted to the judgment of the Court of King's Bench. The court unanimously upheld the arrest as legal; and their judgment was unanimously affirmed, first in the Court of Exchequer Chamber, and afterwards in the House of Lords.

The utmost agitation, however, prevailed in the public mind. It broke out in meetings, resolutions, petitions to Parliament, some so intemperately worded as to secure their own rejection. There was rioting and loss of life, and the utmost estrangement between the Parliament and the public;feverish discontent on one side, the jealous irritation of wounded self-importance on the other. Mean time the national business was wholly neglected by the House; a diversion was effected in favor of the accused

The charge preferred by Mr. Yorke was not for libel or contempt, but (credite, posteri!) for a violation of the Bill of Rights! The process was opened by unfolding that great Constitutional Charter, out of which the clerk solemnly read two extracts; one from the list of grievances'Prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament,'-one from the list of securities against the repetition of grievances―The freedom of speech, and debates or proceedings in Parliament, ought not to be questioned in any court or place out of Parliament.' It was thus assumed that the British Forum in Bedford Street, Covent Garden, was a court or place in which the Bill of Rights had prohibited speeches in Parliament from being questioned, and that such a questioning was one of the reasons for the expulsion of James II. The printer gave up Mr. Gale Jones as the real delinquent, and he was called to answer. He claimed the right of English-Ministers, and the inquiry into the causes men to canvass the conduct of their representatives in Parliament, but acknowledged with expressions of regret that the language of the placard was indefensible. He was sent to Newgate, where he was confined till the session ended. More than once in the course of it, Sir Samuel Romilly endeavored to procure his liberation, but without success; though he was warmly supported by no less an ally of the Minister than Sir William Grant, the illustrious Master of the Rolls.

It was on this occasion that Sir Francis Burdett, after opposing the vote for Jones's imprisonment, addressed a letter to his constituents, with an argument against the power of the House to commit for libel.

of our disasters at Walcheren defeated.

On a dispassionate review of these transactions, after an interval of five-and-thirty years, it is difficult to believe that they attained any one of their objects. Probably no doubt can now be entertained, that the exclusion of the public from these debates was unwarrantable; that the British Forum was justified in the substance of its censure, though perhaps too strongly worded; that the Bill of Rights was not invaded, except by those who so ludicrously brought it into the controversy; that common prudence dictated the passing over Jones's offence in silence; that the dignity of the House would have been more conspicuously vindicated by refusing to take up such a quarrel; that it

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

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

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

Having in his argument denied the lawfulness of such imprisonment, he commenced an action at law against the Speaker for signing the warrant under which he was arrested. New debates arose. A pro

had served the Speaker with notice of action, was made! but overruled. It was resolved that no steps should be taken for staying the action, but that on the contrary the Speaker should appear and plead, stating the proceeding of the House as his defence, the validity of which was thus submitted to the judgment of the Court of King's Bench. The court unanimously upheld the arrest as legal; and their judgment was unanimously affirmed, first in the Court of Exchequer Chamber, and afterwards in the House of Lords.

The charge preferred by Mr. Yorke was not for libel or contempt, but (credite, posteri!) for a violation of the Bill of Rights! The process was opened by unfolding that great Constitutional Charter, out of which the clerk solemnly read two extracts; one from the list of grievances'Prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament,'-one from the list of securities against the repetition of grievances-The freedom of speech, and de- The utmost agitation, however, prevailed bates or proceedings in Parliament, ought in the public mind. It broke out in meetnot to be questioned in any court or place ings, resolutions, petitions to Parliament, out of Parliament.' It was thus assumed some so intemperately worded as to secure that the British Forum in Bedford Street, their own rejection. There was rioting and Covent Garden, was a court or place in loss of life, and the utmost estrangement bewhich the Bill of Rights had prohibited tween the Parliament and the public;speeches in Parliament from being ques- feverish discontent on one side, the jealous tioned, and that such a questioning was one irritation of wounded self-importance on the of the reasons for the expulsion of James other. Mean time the national business II. The printer gave up Mr. Gale Jones was wholly neglected by the House; a dias the real delinquent, and he was called to version was effected in favor of the accused answer. He claimed the right of English-Ministers, and the inquiry into the causes men to canvass the conduct of their repre- of our disasters at Walcheren defeated. sentatives in Parliament, but acknowledged with expressions of regret that the language of the placard was indefensible. He was sent to Newgate, where he was confined till the session ended. More than once in the course of it, Sir Samuel Romilly endeavored to procure his liberation, but without success; though he was warmly supported by no less an ally of the Minister than Sir William Grant, the illustrious Master of the Rolls.

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