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 pri ted 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, and subjecting them to discretionary punish-port to his late majesty on the interesting ment at the mere will of their prosecutors. On the 13th of August, 1835, it occurred to the House of Commons to resolve that parliamentary papers and reports, printed for the use of the House, should be rendered accessible to the public by purchase, at the lowest price they can be furnished, and

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

Certain Commissioners had made a re

subject of prison discipline; which, in conformity to Act of Parliament, was laid before the House of Commons. Their inquiries brought valuable information to the legislature, which it might also be desirable to publish. But they unfortunately had picked up on their way a trivial matter of detail, which led to a controversy between the Commissioners and the court of Aldermen,

We freely discussed, in this journal, these not too clear, and not even very grammatical resolutions shortly after their appearance, and do not mean to comment upon them now. We proceed with the narrative of events.

respecting the management of the prison of assume to decide upon matters of privilege Newgate. The Commissioners introduced inconsistent with the determination of either the name of a person, without necessity, in House of Parliament thereon, is contrary to such a manner as the law would deem the law of Parliament, and is a breach and clearly libellous. If the House had ap- contempt of the privileges of Parliament." pointed such a Committee as we have alluded to, this irrelevant passage would probably have been left out of the printed copy at least the person's name would have been struck out. The House, however, apparently without any examination of the contents, directed the whole Report to be printed and sold in pursuance of their resolution; and Mr. Stockdale commenced his first action against Mr. Hansard, the agent appointed by the House for that purpose.

The Chief-Justice of the King's Bench, on the trial, was called upon by the defendant's eminent counsel, Lord Campbell, then Attorney-General, to direct the jury to acquit him, on the ground that the resolutions to print and sell justified this publication. The Chief-Justice thought otherwise, and expressed his opinion in strong language. The law, as he laid it down, might have been questioned, either on a motion in Court for a new trial, or by bill of exceptions; which would have transferred the whole matter directly to a superior court. But no such step was taken. The heavy damages awarded by the jury were paid without dispute.

While the committee were in deliberation, the same plaintiff had commenced a second action against the same defendant for publishing another copy of the same libel. The House, which had adopted the resolutions of the committee, but superadded another while this second action was pending-a resolution that this very act of publishing was in exercise of their privilege-then determined to defend the action for Hansard, and to plead in his name, as their predecessors in 1810 had done; when Sir Francis Burdett brought his action of assault and false imprisonment against the Speaker himself, for his warrant issued in obedience to a vote of the House.

The plea was Privilege. The plaintiff denied its validity as a defence, and the judges were thus compelled, by the act of the House, to decide that point. They heard arguments of great ability, and of very unusual length, and decided unanimously that the defendant was not justified. Each of the four judges delivered his reasons for thinking, first, that a court of justice is not bound by a declaration of either House of Parliament as to the extent of its own privileges; and secondly, that the 'order of the House did not protect its agent, when sued in an action for libel by a calumniated fellow subject.

A Committee was immediately appointed by the House, 'to examine precedents with respect to the circulation and publication of printed papers, and to ascertain the law and practice of Parliament prior to, and since the order for the sale of such papers.' The Committee took a much wider range, deeming it also expedient to consider, in the most general terms, the subject of parliamentary privilege, and the jurisdiction Different opinions may be, and have been of this House to determine the extent of its entertained, as to the correctness of this own privileges.' They affirmed the exist- decision; but if the law can confer a vested ence of that privilege, in the first place: right, this plaintiff, having obtained the they proceeded to resolve, that the liberty judgment of a competent court in his favor, of publishing papers is an essential incident had a right to sue out execution upon that to the constitutional functions of Parlia- judgment, and he accordingly, in the comment, more especially to the representative mon course, required the Sheriffs to levy branch of it. They added, that the insti- his damages and costs. And if ever the law tution of any proceeding to bring their cast a plain duty on its officer, it was that so privileges into discussion or decision before imposed upon these Sheriffs. They were any other court or tribunal is a high breach bound by their oath of office, and must of privilege; and renders all parties con- have been compelled by the court, on apcerned therein amenable to its just displea-plication, to perform this duty. Yet that sure, and to the punishment consequent very House of Commons which had exthereon.' They conclude with this never-pressly refused to take measures for stopto-be-forgotten admonition to the courts of ping the action; which had directed its offijustice, That for any court or tribunal to cer to submit his defence to the judgment

of the court; which declined to bring that tion of the offending member, when next judgment before a Court of Error, and did he presents himself as a candidate for a seat not, even by a vote, declare the judgment in Parliament. And if he happened not to illegal-chose to interfere in this last stage, have obtained a seat in the Upper House, which their own proceeding had rendered by creation or succession, and if he had inevitable. They strove by menaces to de- performed those promises of bribery, which prive the plaintiff of the fruits of this judg- possibly procured his former election, and ment, and actually incarcerated the Sheriffs if he coveted the honor of representing one for carrying it into effect. of the newly enfranchised boroughs, or any The Sheriff's sued out their habeas corpus. popular constituency, it is possible that at And if the House, following the precedent the end of four, or five, or of six years, the of Paty's case, had returned all these facts victim of an unjust persecution, or his wias the cause of detention, nearly the same dow, or his or her executors or administraquestion which was left undetermined in tors, may hope for the satisfaction of seeing 1704 must have been decided. But they the abettor of injustice thrown out of his thought it became them to make a general seat. But all men are slow to suspect the return, that the Sheriffs had been guilty of government under which they live; the a contempt and breach of privilege; and people of England habitually confide in the court, in conformity with the authori- their own branch of the constitution. Abties, was bound to give credit to this general charge, and remand the Sheriffs to custody; as they must equally have done if a similar return had been made by any competent court, and in strict analogy to what they lately have decided in a case brought before them from the Cour Royale of the Island of Jersey.

stract possibilities of danger do not disturb the repose of the great majority. Let us not deceive ourselves; force and its consequence, success, dazzle men; and bold acts of tyranny are not very unpopular. Neither Henry VIII. nor Cromwell have received the just measure of indignation from posterity. Violence may even command praise Upon this general survey of the proceed- and sympathy, if its object be sagaciously ings of former Houses of Commons in mat- chosen. Most of the people out of doors,' ters of privilege, may we not rest the proof who gave a thought to the sentence on Edof our proposition,-a proposition in itself ward Floyd, probably said that he was not revolting to reason? Is it not clear rightly served for being a bloody Papist. from experience and the evidence of facts, The imprisonment of the Sheriffs in their that the House of Commons, like every year of office, was a good joke for some in popular assembly, and every human institution, is capable of abusing its power? Here is frequent and flagrant abuse, both in the assumption of privileges when they did not exist, and in the mode of exercising them where perhaps they did. It is abuse, too, committed in all ages.

the House, and no doubt for many out of it. When allusion was made to the possibility of so dealing with the Judges, it was consistently treated with some merriment. The propensity in vulgar minds to take part with the strong against the weak, when unjustly trampled upon, is a most important fact in The champions of Privilege do not pre- the history of human nature. That it extend any other security against its abuse, ists, all experience proves. The cruel than public opinion-public opinion which punishments of Prynne and others in the may come limping, pede claudo, years after reign of Charles I., excited more scorn the mischief has been done, can never in- against the sufferers who were made ridicuterpose swiftly enough to prevent it, and lous, than indignation against their hateful can never make amends for it. The re- oppressors. This is the direction in which spectful remonstrance of public opinion the current of satire is too ready to flow. against the falsified return which placed We noticed in our last Number the proud Luttrell in the House, instead of Wilkes, triumph achieved by the true patriot, Daniel as member for Middlesex, was treated by De Foe, when, sentenced to the pillory for his the House with scorn; and might even virtue, he was greeted by the disabused peohave been visited, in conformity with some ple with applause, instead of being covered precedents, with vengeance as a breach of with insult. But we had also to record of privilege. But these same champions of a man of letters, a wit, and a divine-no public liberty, and trustees for the people, meaner judge of human nature than Jonahave suggested but one way in which pub- than Swift-that he speaks of this same lic opinion can make itself felt-the rejec-man with contempt, because he had been in

the pillory. The lesson is taught by him, qui nil molitur inepte, when his hero, Jack Cade, wins the hearts of his followers by establishing the privilege of uttering bad grammar; and condemns the Lord Sands (after a suitable admonition) to be hanged with his pen and inkhorn about his neck; for the enormity of talking of a noun and a verb, and such heathenish sounds as no Christian ear can endure to hear. And it is this evil principle which gives importance and value to a system of fixed laws, administered by known and responsible officers, in preference to summary jurisdiction, to be exercised at discretion by that 'tyrant majority,' which is so often tempted to throw aside all the restraints which reason and justice would impose.

of Parliament the power of publishing any paper, upon their own views of expediency or necessity; and of protecting their publisher from actions for libel by the certificate of their Speaker-informing the court where such action might depend, that the publication was by such authority. This Act originated in the Lower House, and is well known to have owed its success in the House of Lords mainly to Lord Denman ; who supported it there against a strong opposition, and extended its provisions (as common justice required) beyond the immediate agents of either House, to all publishers who should circulate true copies, or faithful abstracts, of papers which had been printed by its authority. The advocates of uncontrolled Privilege consistently opposed this Act, which was regarded as a compromise, and were naturally disgusted with so fatal a blow to their claim. For they perceived that a sole jurisdiction of declaring what privileges they pleased, with an all

tion, is utterly repugnant to their submitting to ask assistance from the other two branches of the legislature for that purpose.

No single instance occurs to our recollection, of a member losing the favor of his constituents for a corrupt vote on an election petition; or an absurd one on the privilege of staying actions against members of parliament; or a tyrannical one for ex-sufficient power to enforce their declarapelling a member, or imprisoning a supposed delinquent. Even the proceedings against Wilkes, with all his popularity, do not appear to have led to such a result. In passing the Act of Parliament, it was Public opinion was at the moment, indeed, taken for granted that private feelings strongly excited; it was almost goaded to would be considered in these publications, madness and rebellion. But other subjects and that nothing injurious would be sancengrossed attention, and this wrong was no tioned without an ascertained necessity. more avenged than it had been prevented, This must have been at all times the wish by public opinion. The late votes against of honorable men, engaged in inquiries Mr. Stockdale and the Sheriffs were never connected with great public interests, and brought up at a contested election; yet dis- unbiassed by personal motives. Publicity, approbation of the measures was manifested in its general results, is undoubtedly the by the verdicts of successive juries, whose friend of truth; it is, moreover, unavoidEnglish hearts burned within them,-in-able in matters of general concernment. flamed by the single thought, that Privilege was assuming to overrule the Law; and who awarded large and increasing damages in actions most unreasonably brought, though no personal or party feelings were engaged on either side of the quarrel.

Even where it brings out the names of private individuals, it affects them much less than they themselves could expect; since due allowance is made for ex parte statements, character cannot permanently suffer without a full investigation, and the most careless have been taught to suspend their judgment till all the evidence is laid before them.

Public opinion, then, though it may find some irregular means of venting its anger against oppressive and unjust proceedings, sometimes at the hazard of general tran- The Act protects none but those who quillity, does not, and for obvious reasons print by the authority of either House of never will, administer that legitimate check Parliament, and thus enables a sufferer to and control over them, which is appealed proceed against the informer who has falseto as the only barrier for the protection of ly accused him. The false accuser i the people against abuse of privilege; dragged into the light by its operation; and much less will it give redress to the injured. to him it holds out no indemnity. Suppose,

The unfortunate difference between the then, that a malignant enemy, or an interHouse of Commons and the Court of ested competitor, plans the ruin of an inQueen's Bench was brought to a conclu-nocent man by slander; and finding a parsion by an Act which gave to both Houses liamentary committee engaged in some inVol. VIII.-No. I. 38

of the court; which declined to bring that tion of the offending member, when next judgment before a Court of Error, and did he presents himself as a candidate for a seat not, even by a vote, declare the judgment in Parliament. And if he happened not to illegal-chose to interfere in this last stage, have obtained a seat in the Upper House, which their own proceeding had rendered by creation or succession, and if he had inevitable. They strove by menaces to de- performed those promises of bribery, which prive the plaintiff of the fruits of this judg- possibly procured his former election, and ment, and actually incarcerated the Sheriffs if he coveted the honor of representing one for carrying it into effect. of the newly enfranchised boroughs, or any The Sheriff's sued out their habeas corpus. popular constituency, it is possible that at And if the House, following the precedent the end of four, or five, or of six years, the of Paty's case, had returned all these facts victim of an unjust persecution, or his wias the cause of detention, nearly the same dow, or his or her executors or administraquestion which was left undetermined in tors, may hope for the satisfaction of seeing 1704 must have been decided. But they the abettor of injustice thrown out of his thought it became them to make a general seat. But all men are slow to suspect the return, that the Sheriffs had been guilty of government under which they live; the a contempt and breach of privilege; and people of England habitually confide in the court, in conformity with the authori- their own branch of the constitution. Abties, was bound to give credit to this gen- stract possibilities of danger do not disturb eral charge, and remand the Sheriffs to custody; as they must equally have done if a similar return had been made by any competent court, and in strict analogy to what they lately have decided in a case brought before them from the Cour Royale of the Island of Jersey.

the repose of the great majority. Let us not deceive ourselves; force and its consequence, success, dazzle men; and bold acts of tyranny are not very unpopular. Neither Henry VIII. nor Cromwell have received the just measure of indignation from posterity. Violence may even command praise Upon this general survey of the proceed- and sympathy, if its object be sagaciously ings of former Houses of Commons in mat- chosen. Most of the people out of doors,' ters of privilege, may we not rest the proof who gave a thought to the sentence on Edof our proposition, a proposition in itself ward Floyd, probably said that he was not revolting to reason? Is it not clear rightly served for being a bloody Papist. from experience and the evidence of facts, The imprisonment of the Sheriffs in their that the House of Commons, like every year of office, was a good joke for some in popular assembly, and every human institution, is capable of abusing its power? Here is frequent and flagrant abuse, both in the assumption of privileges when they did not exist, and in the mode of exercising them where perhaps they did. It is abuse, too, committed in all ages.

The champions of Privilege do not pretend any other security against its abuse, than public opinion-public opinion which may come limping, pede claudo, years after the mischief has been done, can never interpose swiftly enough to prevent it, and can never make amends for it. The respectful remonstrance of public opinion against the falsified return which placed Luttrell in the House, instead of Wilkes, as member for Middlesex, was treated by the House with scorn; and might even have been visited, in conformity with some precedents, with vengeance as a breach of privilege. But these same champions of public liberty, and trustees for the people, have suggested but one way in which public opinion can make itself felt-the rejec

the House, and no doubt for many out of it. When allusion was made to the possibility of so dealing with the Judges, it was consistently treated with some merriment. The propensity in vulgar minds to take part with the strong against the weak, when unjustly trampled upon, is a most important fact in the history of human nature. That it exists, all experience proves. The cruel punishments of Prynne and others in the reign of Charles I., excited more scorn against the sufferers who were made ridiculous, than indignation against their hateful oppressors. This is the direction in which the current of satire is too ready to flow. We noticed in our last Number the proud triumph achieved by the true patriot, Daniel De Foe, when, sentenced to the pillory for his virtue, he was greeted by the disabused people with applause, instead of being covered with insult. But we had also to record of a man of letters, a wit, and a divine-no meaner judge of human nature than Jonathan Swift-that he speaks of this same man with contempt, because he had been in