power to determine, in the first instance, and on ex parte allegations, that a specific action is unfounded. The legal tribunals are the authorities appointed by the constitution to execute this high trust. They are not, indeed, infallible; but they are the best that society has been able to frame for its own protection, and with them on the whole it is well satisfied. No reason can be devised for believing that an injury committed in the course of a parliamentary inquiry invests either house of parliament with any keener perception of truth, or any better means of discovering it: while both are avowedly incompetent to award compensation for injury. The same answer will dispose of another argument which appears to have been urged as a reason for passing these votes :— As we compel the witness to give his evidence, we cannot permit any one to sue him for giving it'-and it has become a habit to talk of our witness.' The compulsion to attend and give evidence, whether by virtue of the Speaker's warrant or of the ordinary writ of subpoena, requires nothing of the witness but to state what he truly knows-not to give the particular evidence, least of all, false evidence from malicious motives. This is what the plaintiff ascribes to the defendant, and by bringing the action obliges himself to prove at the trial.

In the mean time it is evidently possible that a grievous wrong has been inflicted, heavy loss incurred-that the slanderer may be actually deriving pecuniary benefit from the ruin brought upon the slandered. To whatever extent all these facts may exist, the sufferer, whose action is suppressed, is deprived of all redress, and treated as criminal for seeking it by legal means. It is not the

anomaly sometimes exhibited, a right without a remedy; but, where the law recognises the right and supplies the remedy, Privilege threatens to crush with his iron mace the injured suppliant for justice.

These arguments appear to us as complete and unanswerable as they are clear and simple. And here we are not aware that any distinction has been drawn between either House of Parliament and an ordinary tribunal. Bearing false witness before any Court is an obvious contempt of that Court, as well as an offence of a deeper dye. But that contempt must be committed with perfect impunity, if the practice lately adopted should be established-for Courts have no instinctive power of discovering when evidence is false; that can only be expected as a fruit of the scrutiny to which it is subjected by some person sustaining injury from the falsehood. The endeavour to expose it may be no offence whatever, but a meritorious public service, according to the result of an official inquiry. But even if it fail, there is no shadow of contempt of the Court; for no kind of disrespect is implied by it, nor any

obstruction

obstruction offered by it to the proceeding in which the falsehood is supposed to have been uttered. Others may possibly be deterred by the fear of an action from giving false evidence ;-but this is no evil: the salutary fear which is found by experience to be the best security for truth is one of the greatest benefits conferred and intended by a system of laws.

On a calm consideration of this matter, we conceive that if any member of Parliament were now to propose a legislative measure, enacting that no person should be sued for information given to a committee, though such information were false and malicious, no power or influence could be successful in carrying such a measure through. If, on the other hand, it be a clear and acknowledged privilege, so uniformly exercised as to be placed beyond question, a privilege it must remain, like some others sanctioned by custom and practice, though in themselves not to be defended. But such exercise is not to be taken as establishing such practice, from a few occasional votes, if at variance with the first principles of justice, and in truth of no value for enabling the House to perform its functions. Sir S. Romilly disposes of such proofs in a summary but conclusive sentence :

'Instances, indeed, were produced where the House had exercised the power of imprisoning for libels on their past proceedings; but they were few, and mostly in very bad times. One case was that of Arthur Hall, in Queen Elizabeth's reign (in 1580), who, on a complicated charge of publishing a libel on some members, and for disobedience to the summons of the House, was fined, imprisoned for a time certain, and till he should retract his book, and besides expelled; and of this case Hatsell observes, that it is the only instance he had found, previous to the Long Parliament, of proceeding on a complaint of publications derogatory to the honour of the House (1 Hatsell, 127). Other instances, indeed, were produced; but really instances of extraordinary powers exerted and submitted to cannot in such a case make law. If they could, the two Houses of Parliament would have a right to punish by pillory and other ignominious punishments, and by sentence to hard labour for life; for such punishments have been inflicted by the Houses.'

Such punishments have also been inflicted by the Courts at the dictation of the Crown: they have, however, not been adopted as precedents which the law can respect, but condemned as outrages never to be repeated.

Stopping actions by menace is not a new attempt. Like many other things done in the name of Privilege, the practice had been resorted to, with success in the particular instances, but appeared to have been tacitly relinquished. Thus the Commons denied the jurisdiction of the Lords to try appeals in equity suits and during two sessions (both brought to an untimely end by the dispute) threatened parties, counsel, and attorneys with their high dis

pleasure,

pleasure. At length they gave up the point. The delay in deciding these particular cases was probably the cause of no little expense and vexation to both parties. Whether Fagg or Shirley ultimately prevailed we know not. If the former succeeded in reversing the judgment previously obtained by his adversary, a successful attempt by a vote of the Commons to debar him from proceeding would have produced no less an injustice than that of handing over the property of one man to another who had no right to it.

In the case of Ashby v. White, before noticed, the House of Commons endeavoured to defeat a clear right of action by the interference of Privilege. An elector sued the returning officer for rejecting his vote. The Court of Queen's Bench, overruling Lord Chief Justice Holt, held that the action could not be maintained, because the question raised in it could be tried in the House of Commons only. This judgment was brought by Writ of Error into the House of Lords, who, under the advice of a majority of the twelve judges, reversed that judgment, held that the action will lay, and awarded execution to the plaintiff for his damages and costs. The House of Commons declared its privileges invaded, and made war in the usual style on parties, counsel, and solicitors. The execution was levied notwithstanding. If Privilege had triumphed, that triumph would have been achieved over one of the dearest rights of the subject.

The imprisoned parties sued out writs of habeas corpus, and applied to the Court for their discharge. The Court (dissentiente Holt, Chief Justice) pronounced their imprisonment legal under the Speaker's warrant, and remanded them to custody. On this judgment of remand they sued out their writ of error to the Lords. The Commons first tried to stop this proceeding by Law, and afterwards by Privilege. The legal point they made was a doubt whether such writ of error lay: the Judges unanimously declared that it lay. The Commons then addressed to the Queen a prayer that she would be graciously pleased to decline issuing the writ of error. The Judges, by a majority of ten to two, declared that her Majesty had no power to refuse it. The Lords therefore had possession of this process, in which the issue to be tried was, whether a vote of the Commons would make it criminal for one of the Queen's subjects to question, by due course of law, an erroneous judgment depriving him of his personal liberty.

Privilege still maintained the contest-not, as before, to the discomfiture of the parties, for these were already well secured in Newgate, and the Honourable House did not follow former precedents, when offenders were heavily fined, or pilloried, or led by the hangman through the streets of London riding on

a horse

a horse backwards. These aggravations might have ensued if the prisoners had contumaciously persisted in their efforts for liberation. But the counsel and attornies who should dare to plead the cause of personal freedom were not only menaced with violence, but hunted down. The Crown let the curtain fall on the scandalous scene, and by a prorogation rescued Privilege from further defeat and disgrace. Lest this narrative should be thought overcharged, and doubts raised how far the law may be so clear as it is here stated to be, we must add, that the right to sue a returning officer for the improper rejection of a vote at an election is placed beyond the reach of cavil, not only by subsequent decisions, but by the House of Commons itself, which, in concurrence with the Crown and the Lords, fully admitted that right, by passing an act which provided a specific remedy for its violation.

The regret that may be excited by the late proceedings of both Houses admits of some consolation. The vote of the House of Lords for stifling the action to which we have adverted was attacked by Lord Brougham in a short speech, but one of the keenest and ablest ever delivered by him. The division was followed by his Protest, which sums up all the reasoning, and brings the matter to a crisis. If the views which we have laid before our readers are correct, they are here stated in the most clear and forcible manner: if wrong, we are most desirous of seeing them met and refuted by that calm and deliberate discussion afforded by a more convenient season.

We shall select two or three salient points.

It seems clear that the object for which such great force is exerted-the stifling of the action brought-cannot be secured by it. John a' Noakes the party, and Thomas a' Stiles his attorney, may be deterred by threats from proceeding with the action; but you will make another Philip-a second John and a different Thomas will be found, possibly encouraged and stimulated by the pride of contending with so powerful an antagonist; as Paty and his brother electors brought their actions against the bailiffs of Aylesbury in the very same form which had been voted a breach of privilege when instituted by Ashby. Nay, the vote cannot operate directly even on the first action, which, after Parliament is dissolved, or while it is prorogued, may be carried on :— 'Because,' says Lord Brougham in his Protest, the order to prevent a defendant from pleading, or the commitment of the plaintiff for a constructive contempt, never can really stop the action, which may proceed through all its stages, whatever may be done to the parties: unless indeed the greater and unheard of violence were committed of arresting the judges and their officers,

VOL. LXXVII. NO. CLIII.

P

and

and destroying the record, and tearing the proceedings from the file.'

Perhaps even that might not do. On proof that the proceedings had been conducted to a certain point, the mere destruction of the paper and parchment could not bar the party's right to carry on the cause; and, after a certain length of incarceration, the judges and officers must resume their seats. Even if the judges should be expelled from their office by an address unanimously voted in both Houses, and replaced by others, the action must proceed-if either party require it. The new functionaries, appointed probably on the speculation that they would be more obsequious than their predecessors, could only show their compliance by adjudicating in conformity to the law as laid down in the resolutions of the House: but, far from stopping the action, this would most likely send it forward to a Court of Error, where the law would be laid down by other judges, and would again be liable to question in the House of Lords. How strange would be the position of that illustrious assembly if they should find themselves compelled, as a court of dernier ressort, to deny the Privilege, on the assumed validity of which they had in the first instance voted that the action should be discontinued and all inquiry into the merits stifled! What a story would the journals present to admiring posterity!-the first vote being that the plaintiff was one of the worst of men, and the defendant the very bestthe former proved a villain by his malignity in suing the latter,-and the last vote the affirmance of a judgment which entitled the villain to large damages against the true man, and an award of execution for that amount and his costs.

The want of power to protect the witness from legal proceedings is forcibly displayed by Lord Brougham:

'No man pretends to deny, or even affects to doubt, that your protected witness, who must on no account be vexed with an action of slander, may be harassed with an indictment for perjury, presented by any one who chooses to buy sixpenny-worth of parchment, and send a bill before the grand jury at the Westminster Session-House. A witness swears before a committee of this House to certain facts, and swears falsely; though your lordships do not prosecute him, he is still liable to be prosecuted for perjury by any two individuals who heard him give his evidence, though they should be the door-keepers or any other attendants on your lordships' House. The protected witness is indicted for perjury; what is the issue upon the indictment? The truth or falsehood of the thing sworn. And what is the issue here if a justification is pleaded to the action for slander? The truth or falsehood of the thing sworn; the very selfsame issue; the one being a civil case, an action for damages; the other a criminal case, a prosecution for perjury.'

Criminal