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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 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 preBents 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 so
transcendant and absolute that it cannot be confined, either for causes or persons, within any bounds. It can alter the succession to the crown, the religion of the country, the constitution itself.
In quoting the above passage, however, we would fain remember that the doctrines of Coke on this Institute have not been always received as unimpeachable; and though often cited by “high privilege” men for the sake of the author's name rather than his matter, the latter must, in the case of this part of his works, be sceptically scrutinized. Thus, during the argument in Burdett v. Abbott (4 Taunt, 416), it was said that Prynne and Selden had proved that the modus tenendi parliamentum in Anglia, on which most of the Fourth Institute is founded, is a forgery, and that, therefore, most of that treatise must be considered of little or no authority. What Mr. Prynne, indeed, has done, in his treatise upon the subject of this Institute, is to enumerate many misquotations and inaccuracies which he had laboriously sought; and he boldly charges upon its author, in consequence, untrustworthiness generally, in this portion of his famous writing. “I shall seriously advise,” says Prynne, “all professors, students of the common law, especially judges, and all members of Parliament, who shall have occasion to vouch any records quoted in the Institutes in their arguments or debates, diligently to search for, and compare them with, their originals, before they make publike use of, or depend upon them (who, upon that account, should be very willing his misquotations or mistakes should be rectified), lest they be seduced or misguided by them to their dishonour, as many have been, and to follow the author's advice, not to take any thing upon trust, but to search the fountains themselves, which I fear himself did not constantly pursue.” And Sir 0. Bridgman (in Benyon v. Evelyn) says that Lord Coke's treatise on the jurisdiction of parliament is a posthumous work, and contains a multitude of errors. But whether or no the doctrines of Coke, his arguments and authorities, be as unsound as is here represented, it remains still true of the dominion of parliament, that it is collectively, as well as in its separate portions, strong
enough to assert what its dignity requires and public utility demands, and also to waive what may tend to work much mischief to the community—the claim to doubtful or detrimental privileges.
Before we can judge in all respects of the cure for the mischievous relations which at present subsist between courts of law in respect of their jurisdiction, and the House of Commons with regard to its privileges, it will be well to recall some of the more modern cases when the conflict has arisen. We need go back no farther than the celebrated case of Ashby v. White, which was litigated in the second year of Queen Anne, and was selected by Mr. Smith as one of his leading cases, to exemplify the maxim of “ubi jus ibi remedium.” The disputes arising out of this case ultimately took the form of a controversy between the House of Lords and Commons, which was only determined by the prorogation of parliament. The privilege which, the Commons contended, had been invaded in Ashby v. White, was that of their own exclusive right to entertain questions relating to the elective franchise. The House of Lords held that electors had a right to bring actions against returning officers touching their right of voting; whereupon the House of Commons resolved, “that any one who should dare to bring such action in respect of such causes, and all attorneys, solicitors, counsellors, and sergeants-at-law, soliciting, prosecuting, or pleading on” such cause, should be guilty of a high breach of the privileges of the House. Nevertheless, “ the Aylesbury men,” five in number, disregarding this resolution, brought their suit against the constables of this borough for rejecting their votes; and the House of Commons, obtaining copies of the declarations, carried out their expressed intention, and committed the Aylesbury men with their attorney to Newgate, and their counsel to the custody of the sergeant-at-arms.
One of the Aylesbury men (Paty) sued out a habeas corpus to the keeper of Newgate, who, for his return, set forth the speaker's warrant of commitment; and the Lord Chief-Justice Holt, as is well known, distinguished himself by holding, against the rest of