bound to receive all that was offered, and to seek for all that could be obtained They might, indeed, have reasonably paused before they adopted for any purpose whatever the depositions of professed spies and double traitors; and when Dangerfield accused James II., then Duke of York, of compassing the murder of his brother, he seemed to warn them against too readily believing a charge so atrocious. They would have properly stored up the statement, which, however incredible, might have derived confirmation from the developments of time, from other facts, from witnesses less infamous. Here was good ground for vigilance and precaution-a good foundation for further inquiries. This was the USE of Privilege. curred one hundred and seventy years before, and exhibited some most singular features. The Commons, in an appeal 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. Afterwards, they threw down this too invidious distinction; and declared that the Lords had no such right when any commoner was a party. They followed up their 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 bethem for money, sanctioned by the signa- trayer of the rights and liberties of the ture of their Speaker. No doubt, the people of England.' One of the best 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 in what manner was the revenue thus raised Lords, and against the interference of the to be employed? The profits of the sale Commons.* The Lordst had formerly tawere 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 idence by an open impeachment. of the subject, and against Magna Charta, the Petition of Right, and many other laws, which have provided that no freeman shall be imprisoned, or otherwise restrained of his liberty, but by due process of law.' 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 have paid L.8,000,)-his plea of parlia- The Commons acted up to their recorded 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. as a lesser evil. The very same series of No argument is required to prove that proceedings was repeated, in the same orthis series of proceedings was an outrageous der, in the following session. Some of our ABUSE of one of the most valuable privile-readers will probably first become acquaintges entrusted by the constitution to the House of Commons. Interference with the course of justice was not reserved for the year 1845. It oc * See Cobbett's Parliamentary History, Vol. iv, D. 791. + Journal, June 3, 1675. ed with them from this narrative, and will were engaged for the defence of this distinof course be prepared to hear that a privi-guished culprit. They saw notices stuck lege deemed of such immense importance up on the walls of Westminster Hall, that was effectually vindicated-that no such all who ventured to appear in his behalf appeal was ever afterwards discussed at the would incur the displeasure of the House. bar of the House of Lords-at least, that The Earl (May 10) informed the House of the practice was not permitted to prevail Lords that he had expected to meet his without negotiation and conference, and counsel assigned by their Lordships for the some well-devised precautions of legislative defence of his plea; but he had received a wisdom. Hide, blushing glory, hide the message from every one of them, that they humiliating result! The House of Com- dare not appear to argue, by reason of a mons, those exclusive judges of their own vote of the House of Commons, whereby the privileges, which they hold but for the ben petitioner is destitute of all counsel. Some efit of the whole people, surrendered this may regret that such men as Holt and Rayprivilege without another blow. They have mond submitted to this injunction. We tacitly acquiesced in this claim of the think it probable that Erskine would have Lords-nay, more, they have been daily, resisted; and can form some idea of the from that hour to the present, incurring the use to which he would have turned this guilt of betraying the rights and liberties very topic, from his noble defence of Stockof the people of England. Not a session dale; when, not condemned by a vote, but has passed away in which members have prosecuted before a judge and jury, by ornot been parties prosecuting such appeals der of the House of Commons, for a libel on in their own case, or maintaining as advo- that assembly. vates the cause of their clients. We ought not, however, hastily to supSome will doubt whether it ever can be pose that the Earl of Danby's counsel were right to interpose Privilege between the ad-deterred by fear from the performance of vocate and client: there are some occa- their duty. Possibly they felt a natural resions on which it is manifestly indefensible. pugnance to the possibility of producing an Suppose the Crown to possess such a power, unseemly collision between the two most what would be thought of its being exer- venerable authorities in the state. The cised in a criminal prosecution? Conceive Lords ordered their attendance. The Comthe Attorney-General, or the Lord Advo- mons insisted on their absence: the Sercate, putting an individual on his defence geant-at-arms might have held them in cusagainst charges involving life or liberty, and tody for violating the inhibition; the Blackthen threatening him with summary ven- rod for disregarding the summons; or the geance if he should presume to obtain the last-named officer might have been directed aid of Counsel ! Conceive a general notice to rescue them from the hands of the forto all practitioners of the law, that such as midable Topham. Acquiescence would dared to appear in behalf of one accused, have been impossible on either side, and or to advise him on the means of establish-resistance might have ended in bloodshed. ing his innocence, should expiate their au- Possibly these eminent lawyers thought dacity in a jail! It would not be a whit that they best consulted their client's safety more extravagant to utter the same threat by yielding to an order so unjust and unagainst the party himself, who might possi-generous. The advocate of a client prosebly be much better qualified to defeat the cuted by unscrupulous power, may fairly prosecution; and thus accusation and con- speculate on producing a reaction in his viction would be identical, and every man would be bound to submit to judgment against himself. favor, by giving that power its uncontrolled career. The enforced silence of counsel must have inclined any judges all the more to believe that the point raised ought to save the destitute petitioner. When the Earl of Danby, in 1679, was impeached by the Commons before the Lords for High Crimes and Misdemeanors, But Privilege was here called into full ophe sought to avail himself of the King's eration-the privilege of doing injustice, of pardon for protection against the charge. condemning unheard, of deciding without Doubts were raised as to its legal effect. discussion, of putting learned men to siHe wished the point to be argued by his lence, lest their arguments should wrest a Counsel; and some of the foremost barris-victim from the hands of persecution! ters, men destined to fill at later periods the We reach the era of the Revolution, one chief seat in our first common-law court, of the most glorious events in the history of tution of the House of Commons in elec- 4 human affairs. Never had such great benefits been purchased at so little cost, or a vast change wrought with so little ground for cavil or complaint. The Parliament did well in asserting its great and undoubted rights, and in reversing the unjust at tainders of the preceding reigns. Perhaps the House of Commons would have done well to proceed against some at least of the judicial delinquents by the known constitutional method of impeachment. They preferred the resort to Privilege. They committed to Newgate two ex-judges for no criminal or unlawful act, but for the faithful discharge of their duty. Both had been turned out of the judgment seat by Charles II. because they refused to bend the law to his tyranny; but they had been guilty of pronouncing a judgment in strict accordance with the law, ten years before, against ness displayed on both sides to obtain a Topham, the Sergeant-at-arms. No cor- good Committee,-that is, one consisting ruption or partiality imputed-their deci- exclusively, if possible, of one political sion fully justified by clear legal reasoning party; and how rarely such speculations -and even so explained by themselves as were deceived. Let those answer who, not to draw into doubt any privilege claimed from time to time, have been laudably enby the House of Commons-their error, if gaged in framing new securities for an im- error they had committed, atoned by ex- partial decision, by a series of new statutopressions of sorrow only too humble: they ry enactments. On one great occasion the were iniquitously detained in prison till Grenville Act itself was repealed by a spe- the session ended. The proceeding is a cial vote of the House, which gave back to dark stain on the character of that House Privilege what ought to have fallen within of Commons. the province of Law. They took upon themselves to decide on the merits of Mr. Fox's election for Westminster, and gave one more example of their readiness to abuse their power, in deference to the Prime Minister. The Privilege of the House of Commons to determine the right of their own members to contested seats in that assembly on petition, was perhaps the most undeniable of any. The jurisdiction involved an important trust, a public duty of cogent obli- That now abandoned privilege was clung gation. What severe penalties might have to with fondness. The party in power was fallen on the libeller, who had dared to unwilling to throw up the advantage deriv- doubt the purity of their decisions! Yet cd from their majority. And, not satisfied there is strong proof, from competent au- with securing the seat of their adherent by thority-we might say from internal evi- their vote, they strove to make the same dence that in process of time every exer- vote protect the returning officer from the cise of that right had become an abuse. legal consequences of a partial judgment, Without the least regard to the legal mer- by which the electors in the losing interits of the case, every member who belong-est were disfranchised. This led to the ed to the prevailing party in politics was great case of Ashby and White. A person sure of success. As in the time of the civ-in a very humble condition-a cobbler, as il wars of York and Lancaster, they he was reproachfully reminded-tendered blindly followed the dictates of the faction his vote at the election of members of Parwhich had the upper hand. Particular ca-liament for the borough of Aylesbury, and ses of iniquity and inconsistency might be edifying, but we are contented with the general fact. Mr. George Grenville told Mr. Knox, under-secretary of state-when incapable of serving the public in an official capacity of his intention to endeavor to give some check to the abominable prosti was rejected by the returning officer. The losing candidate petitioned the House of Commons, which declared that his vote was inadmissible. The elector, however, being advised that his vote was notwithstanding perfectly good, brought his action for the rejection of his vote. Lord Chief-Justice had made the habeas corpus, as was vainly hoped, the all-sufficient bulwark of that inestimable blessing. ers not differing, but only doubting) were clearly of opinion that it was grantable ex debito justitia, and COULD not be withheld; -a doctrine, by the way, without which the habeas corpus would be a word without meaning. Thus baffled, the House of Commons, with a pertinacity worthy of a better cause, had recourse to Privilege. They condemned Paty and others, and voted that Holt thought the action maintainable, while his three brethren held the contrary opinion-grounded on the notion that this was a question of Privilege which the House of All the twelve judges being consulted, Commons alone had power to decide. And were of opinion that the writ of error lay it is certain that the House alone had pow-in such a case; and ten of them (two other to decide who should occupy the seat, and, with a view to that result, whether the plaintiff had the right of voting. But the plaintiff contended that he had suffered wrong by the returning officer's rejection of his vote; and for this wrong the House of Commons never pretended that they could give him redress. An incongruity would indeed have appeared between the decision of the House of Commons and the four counsel and two attorneys named that of the Court of Queen's Bench; but this is no more than the conflict that frequently happens between two courts of law deciding any matter incidentally. It constantly occurred between two decisions of the House itself, when the same point arose in favor of the Minister's friend, and against him. in their several resolutions, 'in pleading upon the return to the habeas corpus on behalf of the prisoners committed by this House, are guilty of a breach of the privileges of this House,' and should be taken into custody. The lawyers produced to the Sergeant-at-arms a protection from the House of Lords,-assigning them to give The majority in the House of Commons, legal assistance to their clients, and forbidhowever, passed a resolution to the same ding all Sergeants-at-arms to meddle with effect as the judgment of the majority of them. There is reason to believe that the the Court; they did not in the first instance Commons, with marvellous inconsistency, threaten the plaintiff with their displeasure, admitted the validity of this protection. and he brought his writ of error on that The five suitors appear to have lain in jail judgment. The House of Lords, after con- till the end of the session; but this was sulting all the judges, decided in favor of the Chief-Justice's opinion, and reversed the judgment of the majority of the Court; and another rejected elector, possessing the same right of voting, fortified by this, the highest legal authority, brought his action also against the returning officer for the same grievance. speedily terminated by the Crown, which prorogued Parliament. Let it be stated that all these measures were strenuously resisted by the Whig party in the House of Commons ;-the heir-apparent of the house of Cavendish taking a conspicuous part in the debate, ably supported by Cowper and King, future Chancellors, and by the popular name of that lawyer who is handed down to posterity with grotesque respectability, as having never changed his principles or wig,' Sir Joseph Jekyll, afterwards Master of the Rolls. Now Privilege took the field. The House of Commons sent him and several others to Newgate for this exercise of a clearly legal right. He sued out his habeas corpus, but was remanded to prison by the same majority of the Court which had denied The Lords on this occasion, as they have that legal right. He sued out a writ of er- on many others, asserted the true princi ror on this judgment of remand. What, ples of constitutional freedom. They found then, was the resource of the chosen trus- it necessary to declare, by a formal resolu tees of the people, quos magnum aliquid tion, one of those elementary truths which, dubia pro libertate decebat ;—those who in ordinary circumstances, are too plain eihad been pronounced but a few days before, by judicial authority, incapable of exceeding their bounds, or doing any thing amiss? They actually stooped to present a humble address to the Crown, praying that this writ of error might be withheld, of Parliament.' and the subject deprived of the benefit of a legal judgment on his right to personal freedom, secured by so many statutes, which ther to be questioned or asserted. 'Neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known ways and custom Again, The deterring electors from prosecuting actions in the ordinary courts of law, and terrifying attorneys, solicitors, counsellors, and sergeants at-law, from soliciting, prosecuting, and to a boundless latitude. Many members pleading in such cases, by voting their so doing to be a breach of privilege of the House of Commons, is a manifest assuming a power to control the law, to hinder the course of justice, and subject the property of Englishmen to the arbitrary votes of the House of Commons.' * raised an income by selling their protections to bankrupt traders; to needy debtors who could not, or to rich swindlers who would not, satisfy the just demands upon them. The practice appears to have been by no means uncommon, though Col. Wanklyn, when detected, was expelled the House for it in the reign of Charles II. The mere continuance, however, of the acknowledged privilege deserves the name of an abuse. No man could believe, in the eighteenth century, that the freedom from arrest of a member's servant was necessary, or at all conducive to the member's discharge of his parliamentary duty. Yet the exemption remained. The footman of a learned civilian was released, as a privileged man, by a vote of the House, from an imprisonment which he had incurred as the father of a bastard child. But the original object of a war so violent, which could only be just if necessary, and for which the Commons first took up arms, was not left to be secured by their all-sufficient Privilege. It was afterwards happily settled by Act of Parliament. How settled? Instead of its being written in indelible characters in the great book of the English constitution, that the Commons only can judge on the subjects' vote at elections, and that an elector cannot sue the returning officer for refusing it, the Crown, the Lords, and the Commons, declared the very reverse; and gave the aggrieved elect- The privilege of members themselves to or a defined remedy for that acknowledged be exempt from all legal process, was injury. In strict conformity with the prin- equally established by the prevailing pracciples of the common law, so ably main- tice, and was equally unworthy of a civitained by Holt, as they had previously been lized country. However indisputable a taught by Hale, and were afterwards avow- plaintiff's right, he could not safely attempt ed by Willes, a Chief-Justice of almost to enforce it against a member either by equal reputation, the subject's right was es- action at law or suit in equity. But, while tablished to do that freely at his own will the House resented all recourse to legal and pleasure, which the House of Com-process against its members, the habit of mons declared he could not do without a deciding matters in their favor by a process breach of their Privilege. The great lawyer last named distinctly repudiated all power in the House of Commons to make its voice heard in a court of law on that subject. I declare for myself that I will never be bound by any determination of the House of Commons, against bringing an action at common law for a false or double return; and a party may proceed in Westminster Hall, notwithstanding any order of the House.' Some other abuses must be dealt with en masse. The protection of the servants of members of Parliament from arrest, had been recognized as a privilege from an early period; on the principle that their attendance on their masters ought not to be interrupted, while they were devoting their time to the service of the country. Though the reason could hardly be thought applicable during adjournments and prorogations, yet the privilege prevailed through the year, and during the existence of the Parliament. This most liberal allowance was pressed by abuse of the meanest kind * Lords' Journals, Jan. 14, 1704. of its own became inveterate. To assert a right of way over a member's land was punishable as a breach of privilege: those who fished in waters wherein a member claimed an exclusive right of fishing, were sent to prison for breach of privilege: to replevy cattle distrained by an honorable member, however unlawfully, was a breach of privilege. An attorney sent a bill of costs to his client, which the latter thought too high. He might have had it taxed by the officer of the court; but, being a member of Parliament, thought the shortest proceeding the best, and procured the incarceration of the unfortunate and unpaid solicitor for a breach of privilege. There is something remarkable in the inconsistency displayed by different parliaments, and their varying views of their own power;-now enthroning it aloft, now contentedly placing it in the humblest position. Some instances have already been alluded to; but there was one privilege of the highest value, which few would deny to be essential to the functions of Parliamentthe exemption from personal arrest. In civil actions, when the law was such that |