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statute founded upon the same principle, is the only mode by which collisions between parliament and the courts of law can be prevented for the future.”
The author having here pointed out the anomalies and provocation to conflict, then proceeds to throw out a sensible suggestion to ensure the practical decision of questions of privilege when they arise between parliament and the courts of law. He proposes that there should be devised some proceeding analogous to an injunction or prohibition, to restrain parties from carrying on an action at common law, or taking other step3 which are in derogation of the privileges of parliament, and that this prohibition should be made binding also on the courts.
The first question which arises is, what is the “privilege” in question? The dignity and independence of the two Houses are, “in great measure, preserved by keeping their privilege indefinite,” says Blackstone (Com., vol. i. 164), and he assigns for a reason, that if all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy “for the executive power to devise some new case, not within the line of privilege, and, under pretence thereof, to harass any refractory member, and violate the freedom of parliament!” But this is not very satisfactory reasoning. For, whilst most of the collisions between the parliament and private persons have arisen from this indefiniteness admired by the commentator; so, also, the greater danger which has been threatened of late, is not through the powers of parliament being insufficient to protect its members from oppression by the Crown or molestation from other quarters, but rather that the privileges in question may be asserted and extended in violation of the freedom of the people, and the rights of private individuals.
Although, therefore, we cannot acquiesce in Blackstone's view of the great advantage derived from the uncertain character of privilege, yet, from its very nature and that of the body to which it is attached, there probably will be, at various times, as there have heretofore been, cases of doubt and dispute connected with
the operation of the lex et consuetudo, and this renders it essential that a means of settling them should be fixed.
There are two matters of courtesy rather than privilege, which, being undoubted and comprehensible, we may here refer to, before we investigate any question relating to privilege. The first is freedom of access to the sovereign. By this right individual members of the House of Commons may accompany the Speaker when he approaches the throne with an address; and, moreover, they may effect entrance to the presence of royalty in the ordinary costume of gentlemen, instead of that of their footmen. The second is, that their proceedings may receive "a favourable construction” from the Crown; a concession, we may add (without, we hope, incurring the penalties of contempt), of great value, considering the vast blunders fallen into, the amount of precious time wasted, and the party spirit exhibited on many occasions by the august legislative assembly.
Passing from these matters of courtesy to what is more properly the privileges of parliament, we find that some of the latter have been defined or confirmed by statute, whilst others rest solely upon law and custom. Thus the freedom of speech, which is an essential privilege, depending upon ancient custom (and one which, we may remark, especially in respect of the quantity, seems to be much prized by certain members of the Houses at the present time), was made a subject of legislation in Henry VIII.'s reign, on occasion of Richard Strode being prosecuted in the Stannary Court for his conduct in the House of Commons, with reference to bills relating to the tinners of Cornwall. The 4 Henry VIII. c. 8, was passed, enacting that all suits, condemnations, &c. &c., "put or had” upon the said Richard, “and to every other of the person or persons that now be of the present parliament, or that of any parliament thereafter, shall be for any bill, speaking, reasoning, &c., of any matters concerning the parliament, utterly void, and of none effect."
In the interval between Strode’s act and 1667, the privilege of free speech had nevertheless been often contracted or violated. At this latter period, therefore, the Commons took the oppor
tunity to resolve, that "the act concerning Richard Strode is a general law,
and is a declaratory law of the ancient and necessary rights and privileges of parliament.” Further, it was declared by the Bill of Rights (Art. 9), “that the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.” And again, at a still later date, a parliamentary privilege, or what was contended to be one, has been made the subject of statutory enactment by the 3 and 4 Vict., c. 9. By this act persons publishing papers by order of either House of Parliament, and those printing copies of such papers, are protected from all proceedings, civil and criminal, in respect of the contents of such papers.
Where statutory enactment does not define privilege, perhaps the best mode of arriving at its definition is by considering the instances where it has been declared that breaches have been committed. Thus direct disobedience to the orders or rules of the House is a breach of privilege, and has often been construed as a contempt, as have insults to the legislative body, and interference with its constitutional functions.
The publication of the debates of either House is also another breach of privilege. The Lords have a standing order to the effect, that it is a breach of the privilege for any person “to print, or publish in print, any thing relating to the proceedings of the House without the leave of the House." And until a century ago the journals of the Commons afford repeated instances of a like jealousy felt by their House to the public learning aught of their proceedings and debates. This is not one of the present dangerous privileges; for these orders are now, of course, only used formally, for the purpose of preventing misrepresentation of the debates. Any county member nowadays, however great a stickler for parliamentary dignity he may be, who is not reported in all his weary prolixity, and has not his stale and tautologous verbiage turned for him into a grammatical address, considers himself aggrieved. It is indeed hardly possible to conceive that this order, in its original and true meaning, would ever be attempted
to be enforced again; but if it were, a question might possibly arise as to whether, under the altered circumstances of the country, the privilege is not abrogated, and whether it is within the present power of parliament to hold its debates in secretwhether, in point of fact, the reporters' gallery has not grown to be a substantive part of the representative institutions. The fact of the privilege becoming obsolete (arising from the change of habit and thought), has, we may remark, produced a curious anomaly; for, whilst an honourable member may still speak any amount of slander in debate and be irresponsible, the unfortunate newspaper proprietor who permitted such speech to be reported is liable for libel.
Again, libellous reflections on the character or proceedings of parliament are breaches of privilege, which, on divers occasions, have been punished by reprimand, fine, imprisonment, pillory, or prosecutions at the hands of the Attorney-General. Recent instances of this breach are those of Sir F. Burdett, who published in 1810) “a libellous and scandalous paper, reflecting upon the just rights and privileges of the House.” He was thereupon sent to the Tower. The case of Burdett v. Abbott (14 East. 1), to which we shall hereafter recur, arose out of this imprisonment. Nine years later Mr. Hobhouse was committed to Newgate for a “scandalous libel,” tending to "inflame the people and excite them to violence against the House. In 1838, Mr. O'Connell charged upon certain members of the House, in the exercise of their duties on election committees, foul perjury. He avowed and repeated in his place this charge ; but this offence was so venial that the honour of the House was sufficiently vindicated by the Speaker reprimanding him ! So, too, those guilty of libelling individual members, as by affirming they were bribed, or by being otherwise guilty of gross misconduct, have been subject to the just penalties of the House.
Interference by menace, molestation, or otherwise, and reflections upon individual members, are also breaches of privilege. Thus, in modern times (1834), the editor of the Morning Post having indecently criticised Lord Brougham's judicial conduct
in the House of Lords, was committed to the custody of the Usher of the Black Rod.
Another class of breach of privilege is the offering of bribes to, and their acceptance by, members. The last instance, we believe, of a proved case of this corruption occurred in 1695. However, in 1858 circumstances occurred which we need not here further allude to, but which occasioned the House of Commons to resolve
“ That it is contrary to the usage and derogatory to the dignity of the House, that any members should bring forward, promote, or advocate in this House any proceeding or measure in which he may have acted, or been concerned for, or in consideration of, any pecuniary fee or reward.”
There are other breaches of privilege which may be found printed in the journals of the Houses; but the enumeration above suffices to remind us of the general nature of privilege, and the importance of its being duly understood and temperately exercised. We agree with Mr. May, that now, whilst there is no legal contention or exciting cause of wrath between the powers, is the best time to settle the limits of the right of the legislative assembly. We believe further, that neither this nor any future period is likely to be one well suited for parliament to claim or exercise any prerogative or privilege which might be considered strained or exorbitant. Parliament, we also believe, would not lose in dignity by condescending to explain and agree on a procedure which should protect itself, and not provoke interference with the rights of the public. The strong can afford to be.just—and the potency of parliament is undoubted. Indeed, “it is a fundamental principle,” according to Delolme,“ with the highest lawyers, that Parliament can do every thing but make a woman a man, and a man a woman,” which is a more concise description of its limits and powers than that which Coke presents in his Fourth Institute. Of this high court the latter authority observes, that it may be of a verity affirmed, “si antiquitatem spectes est vetusissima; si dignitatem est honoratissima; si jurisdictionem est capacissima." Its power is