within their own walls sat Sawyer, and Williams, and Finch, the persecutors to death of Armstrong and Sidney-the blatant revilers of the bishops.'-(Ib. 157.)

No right-minded man can wish to depreciate the great merits and services of the Convention Parliament, which was not, however, a club belonging exclusively to one party, gaining the upper hand by violence, and laying all adversaries low, but a union of all the parties in the state, which, while driven to resistance by the enormities of the late reign, were still earnestly bent on the noble task of erecting a new government by law, by a judicious balancing of the feelings, opinions, and interests of all.

The apology for the illegal severity into which the Commons were betrayed against two high functionaries who did their duty, attempted to be drawn from their forbearance and lenity towards others who had grossly violated theirs, cannot be admitted for a moment. Sir Francis Pemberton could derive no consolation in his cell in Newgate from knowing that Herbert, Wythens, and Williams, escaped the punishment due to their misconduct : such unjust partiality would rather aggravate his sense of the wrong he endured. With submission to Mr. Townsend, we think that Lord Ellenborough might naturally object to the precedent. Nothing is less acceptable to minds accustomed to any rational theory of crimes and punishments, than that species of mob-justice which, failing to secure Cinna the conspirator, is content to hang Cinna the poet; or the politic determination of the puritanical colony to hang an 'old weaver who was bedrid,' as an atonement for the preaching cobbler's offence, whom they could not spare from among them. It is to be lamented that the lawyers who sat in that parliament either wanted the courage to resist this illegal vote, or the influence that should have dissuaded the majority from adopting it. They, at least, well knew that the punishment was an outrage upon justice, and the conduct praiseworthy which was treated as criminal. It is always a thing to be lamented when the historian stoops to palliate acts of wilful oppression. Fox justly reproaches Hume for withdrawing one strong check from the minds of princes by extenuating their faults; and experience proves that popular assemblies stand at least as much in need of all the restraints which a dread of censure and shame can impose.

Few persons will have taken up these volumes without the expectation of finding some allusion at least to those questions on the nature and extent of parliamentary privilege which have lately occupied attention. The period of the title-page does not indeed embrace them, as they began to be agitated since the passing of

the

the Reform Act: but the history, in many of its branches, begins before 1688, and some particulars are brought down lower than 1832. In running over the table of contents at the head of the first volume, our eye rested on the phrase, This last feather in the plume of Privilege is at length torn away.' In the text the same last feather is said to have been remorselessly' torn awaya startling announcement at this day, when Privilege has been asserting its claims in the loudest and most commanding tones: but, on a more attentive perusal, the meaning of the word will appear to be here confined to the transmission of letters free of postage an exemption not, as we think, remorselessly torn away, but gracefully surrendered to the popular anxiety for the full trial of a great financial experiment.

The more general subject is however touched in various passages of the work, and it yields to none in importance. Recent events induce us to enlarge once more on this great and interesting subject, Privilege of Parliament.

We hold its very name in reverence. We regard it as representing the influence legitimately exercised by public opinion over national affairs. It is the instrument by which the great body of the people interposes in the government, strengthening power when beneficially exercised by the most effective sanction, deterring from oppression by remonstrance beforehand, or chastisement inflicted after the fact, and seeking an appropriate remedy for every evil that may have crept into the State, or may menace the general welfare. From the hour when the first parliament sate, under whatever title, the consciousness of its own value, as securing these great purposes without violence, must have been present to the minds of some of its members. The first efforts would be coarse, rude, and inconsistent; rendered feeble and defective by the vast disparity between individuals who took a leading part and the mighty powers which they dared to control or question: but the principle was alive and active.

Without freedom of debate, Parliament could perform no part of its duty. Lord Coke, in his quaint language, calls this fundamental privilege the quintessence of the four essences:' whether it was or was not first formally claimed in the Speaker's address to the Throne on the accession of Henry the Fourth, it was an inseparable attribute of the House of Commons. The rebukes and penalties that followed its exercise prove its existence. Though Sir Peter de la Marr suffered close imprisonment for his reflections upon Alice Pierce, the royal favourite, and the unfortunate clerk, Sir Thomas Haxy, was even condemned to die the death of a traitor for introducing a bill to restrain the extravagance of

Richard

Richard the Second's household, these things show that the expenses and even the personal conduct of the king were in the fourteenth century made the subject of attack in the House of Commons. The noble name of Wentworth can boast that those who bore it in the reigns both of Tudors and Stuarts had the honour of suffering persecution for the freedom with which they canvassed affairs of state within the walls of Parliament; the illustrious Selden and his compeers were sent to the Tower, after the session, for their proceedings in the House; the courts of law, corruptly obsequious, recognised the power of committal for such offences, at the king's pleasure; and Sir John Elliott, the ancestor of the Earl of St. Germains, fell a martyr in prison to this unjust sentence. But the offences were committed, were repeated, were avowed as meritorious, or rather vindicated as necessary for the discharge of duty. The privilege stands recorded in the Petition of Right; it is secured and enforced by the Bill of Rights: not created by those venerable statutes, but declared as that without which our free constitution existed

but in name. This privilege was the law of the land: the judges who denied it betrayed and disgraced the law which they ought to have administered. The outrage thus committed in its name against the freedom of parliament in the times of James the First and his unfortunate son did more to estrange their loyal subjects than any other of their errors; and the mean acquiescence of the judges had the effect so feelingly described by Clarendon of uprooting the last hold possessed by the government on the confidence of the country.

Personal freedom from arrest must also have been of early introduction. The necessity for it might not have been foreseen; but any power of imprisoning the members may be so effectually employed to defeat the exercise of all parliamentary functions, and is so obviously capable of being abused to that end, that it must have been prevented from the first moment that the Commons felt their independence. We need not go higher than the reign of Henry the Sixth for the historical proof. The case of Thorp, Speaker of the House of Commons, and afterwards a Baron of the Exchequer, is extremely singular in all respects. Our present concern with it is only this: that when he was committed to the Fleet in execution of a judgment, the whole House petitioned the king for his release, claiming freedom from arrest as a privilege by common custom, time out of memory of man.' The privilege was extended to the servants of members; and persons of substance who feared to be arrested for their debts paid money to the members for this exemption, and were fraudulently

enrolled

enrolled as their menials. The apparent retinue was likely to be large in proportion to its real insignificance: for the needy member was in the habit of selling his protection for a few shillings-an abuse long since swept away, as the servants' privilege has been abolished by act of parliament. That of the members is still kept alive, and is not likely to be extinguished.

The privilege of committing for contempt must belong to every legislative and to every judicial body. It rests on the necessity of removing obstructions-either such as create a physical difficulty of proceeding, or a moral impossibility of commanding the necessary respect-of putting down the coercion of members by popular violence, or resenting the disparagement of either house by insulting libels. The exercise of this latter privilege, powerfully vindicated by Lord Ellenborough in the judgment above cited, has nevertheless been long regarded with natural jealousy: and considering with what absolute freedom the measures of government and the acts of individuals are now daily discussed, the greatest caution and forbearance must appear to be necessary in acting on this species of contempt. The offence is in its nature doubtful, the punishment discretionary; and the judge, provoked to pass a sentence for an offence towards himself, cannot be expected to decide with an unbiassed mind. Besides, the ordinary tribunals are fully competent either to punish the libeller, where really criminal, or to give compensation to persons really injured by libel. Yet, with all these disadvantages, there may be a necessity for either house to act promptly in the repression of outrages upon decency; and the privilege admits of no dispute.

All penal visitation by either house of parliament for misdemeanors of a more general nature, as when the Long Parliament took upon itself to punish for blasphemy or heresy, we humbly conceive to be absolute departures from the line of duty prescribed to Parliament by the Constitution; nor is there the least fear (notwithstanding a long line of precedents) that we shall witness the infliction of punishment for such offences in modern times.

It is in the nature of Privilege to take a much wider range. As the great inquest of the nation, intrusted with the right of impeachment, the Commons must possess all necessary means for collecting information and evidence. Being bound to exercise their judgment on all legislative measures, they may find it necessary to institute a free inquiry into facts of every description; and as unforeseen obstacles may be wilfully thrown in their way, which they must have the power to remove, there may be no possibility of precisely defining beforehand the precise means by which the exercise of their power may be defeated. In this sense, therefore,

therefore, the House may be truly said to be the sole judges of breaches of privilege. For example: an assault is an offence at law, and may be punished in the courts, and is, generally speaking, no breach of privilege: but an assault accompanied with imprisonment, to prevent the attendance of a witness before a Committee, or an assault upon a witness by a party affected by his evidence, may obviously fall within that description, and the offender be properly chastised for breach of privilege.

The distinction between the right to punish for an invasion of known privilege, and the right to define privilege, seems too clear to stand in need of any proof. Yet it should seem that these two intelligible propositions have been confounded. Among the privileges of parliament, the privilege of declaring absolutely and exclusively what those privileges are, has been of late prominently and authoritatively claimed. Let us reflect on the nature of this claim, and consider what reception it could have expected at the hands of a Plantagenet or a Tudor, if Mr. Speaker, when presented for the approval of the sovereign, had asserted it as the inherent right of his faithful Commons. What would have been the surprise excited! Most likely some explanation would have been called for; and, if given in the unlimited sense to which it has been expanded in later times, as involving the right of disposing at their pleasure of the rights of individuals, without check or control from the king's courts, or any authority known to the laws-those courts and those laws to which the king never denied that he himself must yield obedience—a most animated scene of some kind could hardly have failed to be presented. The bold extravagance of the demand, its monstrous incongruity with the principles and the forms interwoven with the very idea of a parliament, and with the means of enforcing it, might have sunk all feelings of indignation in surprise and ridicule. The monarch might have stormed; or he might more prudently have undertaken the defence of popular rights, and reminded the delegates of the people that they were sent to deliberate on the granting of supplies and the redress of grievances, on the enactment of new laws, or the repeal of old ones, in concert with the king and the lords-but that neither king, nor lords, nor commons, had a right, in the name of privilege, or in any other name, to exercise a power superior to law! The third monarch of the Stuart race was supposed to have met such a claim with no unseasonable pleasantry. When the Commons went up with an address so worded that it could be fairly translated into the doggrel

"With all humility we crave,

That you, our king, should be our slave.'