TOPICS OF THE DAY.
PRIVILEGE.
THE litigations in which the House of Commons has been in- volved by the great Privilege controversy appear interminable. They succeed each other like a patriarchal genealogy. Stock- dale's case begat Howard's, and Howard's begat three others, in one of which the damages are laid at a hundred thousand pounds ; and each of these may be equally fruitful. The eidolon of an attorney stalks behind them, like the shadowy Banquo behind his sceptred descendants in the witches' cave, carrying a glass in which the fears of the House of Commons see many more. Something is required to extricate the House of Commons from its present embarrassing and rather ridiculous entanglement. The body invested with the third voice in the triumvirate of cor- porations which give law to the land is interrupted and worried in the midst of its grave occupations—pecked at as by daws by a set of attornies. Public decorum is outraged by the seeming helplessness of the Representatives of the People. The knot does not appear to be one that can be untied by legal arguments and appeals to precedent. Yet hitherto it is by that means alone that the House has attempted to guard its "privilege" In this there is no slight inconsistency. A power of being above the law—a privilege of being a law to himself, claimed either by man or corporation—is an exception from legal principles, and not to be brought within the categories of legal logic. A parade of pre- cedents is mockery when the right in support of which they are cited is said to be the right of acting in any case as the judgment (or will) of the claimant shall deem best suited to the emergency. With like inconsistency, the Committee of the House of Com- mons "guard themselves against the supposition" that in re- commending a writ of error in the case of Howard, they have expressed any opinion as to the course to be adopted in the event of a decision in any of the pending actions adverse to the pri- vileges of the House of Commons. In other words, if the judg- ment be " for," the House will take advantage of it ; if " against," the House will refuse to obey it. This is not a fair "wager of law " : it strikingly resembles a practice in the wagers of the turf (with which last session's Committee must have rendered honourable Members familiar) called "levanting "—in which the betting gentleman who would have taken the stakes had he won walks off without paying when he loses. Such shuffling indicates on the part of the House of Commons a sense, though perhaps not a very clear one, of its actual posi- tion in the controversy. The precedents appealed to prove only, that under certain circumstances the House of Commons acted in a certain manner. It was able so to act because it happened at the time that public opinion was strong in its favour and bore it out. But no array of precedents can enable the House to do with impunity an act against which public opinion is strongly declared. No precedent can assure Members that it is safe or possible for them to act in this age as their predecessors did two hundred years ago, when public opinion—public temper—was so different from what it is now.
The House appears to have erred from a mistaken notion that it is bound in honour to assert every power and privilege it may at one time have exercised. It lays equal stress upon the privilege it claims of publishing with impunity (as in the case of Stockdale) matter which published by any private individual would subject him to an action for libel, and the privilege it claims (as in the case of Howard) of having parties arrested by informal warrants. Yet the former privilege may be indispensable to the discharge of its functions as grand inquest of the nation; the latter is certamly not indispensable, and it is liable to be perverted into a means of oppressing private individuals. A Committee of the House, how- ever, on searching the journals, find or fancy that both privileges have been asserted on some former occasion ; and, resolute to allow no particle of power to escape, the House resolves to claim both, on the ground of precedent. It thus weakens its case with the public. Any man can see that legislators, for legislative purposes, may have just occasion to institute and publish the result of inquiries, which would be sheer impertinence or malice in a private individual. On the other hand, it is as easy to make out a formally correct and legal warrant, as a loose, inaccurate, and illegal warrant. General warrants may be made instruments of oppression, against which the meanest subject is entitled to protection. The discharge of legislative duties cannot be impeded by insisting that every person laid hold of by its order shall have fair play. The House of Commons would at this moment have been in a better position had it firmly taken up and consistently maintained the ground of privilege in the case of Stockdale, and had paid quietly for the blunder of its servants in the case of Howard, even though both privileges be equally strong on the point of precedent. Parliament may relinquish some powers once claimed by it without loss. The age of extreme measures—of what Continent- al physicians would call " heroic cures "—is past. There is no chance of another Charles entering the House of Commons to arrest five Members who have given him personal offence. The violent intrusion of Kings is as little to be feared now by the Legislature as the intrusion of footmen, who—to judge by the number of warrants against the liveried fraternity among the array of precedents in the Blue Book about Howard's case—mast at a somewhat later day have made themselves equally terrible. There is consequently no necessity for re g the retaliatory
measures of Parliament against Charles t e First as binding pre- cedents. In 1699, the Lords Spiritual and Temporal ordered their Sergeant-at-Arms to attach and keep in safe custody till further order, " John Clements, fishmonger," who had " spoken opprobrious words of the Right Honourable Peregrine Lord Os- borne, as Master of the said Company of Fishermen. If any of the many noble Lords who wear at present the blushing honours of the Merchant-Tailors, Goldsmiths, or Fishmongers, chance to have a quarrel over his cups with a brother corporator, as suck, the House of Lords would not feel itself bound by this precedent to notice any strong language addressed to the Peer in the course of the brawl.
Among the privileges claimed by the House of Commons, is that of not being sued (by its servants) in courts of law—of being, in short, judge in its own case. This privilege does not appear, in the circumstances of modern society, more necessary for the protection of the House, or less inconsistent with the modern sense of indivi- dual rights, than those extreme measures just referred to. When the rights of the Representative body were less fortified by long pre- scription, and when public opinion was too weak to control syco- phantish Judges, the House of Commons wisely refused to sub- mit its controversies with the Crown to the decision of the Bench. But Mr. Stockdale or Mr. Howard possesses no influence over the Judges so strong as to expose the House of Commons to the risk of an unjust decision. On the other hand, the private individual who comes into collision with six hundred legislators may be in the right, and it were hard that he should not have the protection of some court to decide between him and his adversaries. The House of Commons can no more be trusted as judge in its own case than a single person. The esprit de corps will lead men to do in their corporate capacity things of which every individual would be ashamed in his private capacity. The indolence of a great number of Members—the divisions and subdivisions of party—the habit of trusting to a few Members of superior acti- vity or longer standing than the rest—lead our legislators to di- vest themselves easily. of any disagreeable sense of responsibility. There is consequence in the conduct of the House of Commons Members have an esoteric and exoteric moral creed. It can exercise its great powers at times in as splenetic and unjust a way as any King. The responsibility of the representative to his constituents extends only to measures that concern all: it is nugatory—or at all events its effects are too partial and tardy to afford security to the individual citizen. When the Crown submits to the Judges the decision of its controversies with private individuals, there can scarcely be danger or dishonour for the House of Commons in pursuing the same course. If a judicial sentence in any indi- vidual case encroach upon the necessary privileges of the Lggis-' lature, the legislative authority can prevent the recurrence of the evil.
The ground assumed by the House of Commons on the last- mentioned claim of privilege has brought the Judicature and the Legislature into direct collision. Before this happened, plausible objections might have been urged to any attempt to legislate on the question of privilege. Among the necessary privileges of the House of Commons, is of course included a right to act promptly and peremptorily. in cases of emergency. It is impossible to fore- see and provide in a statute for all the contingencies that may arise. But when the Legislature and the Judicature come to dif- fer in opinion as to what is common law, there is no resource but legislation. Where there is no statute, decisions of the Judges make what is called common law. If the Court of Error con- firms the judgment of the Court of Queen's Bench, no re- solution of the House of Commons can annul that decision. The cooperation of the Crown and the Peers will be required to sub- stitute a law under which the Legislature can efficiently discharge its functions. Though it may not be possible to provide for every conceivable emergency, some general principles may be esta- blished. For example—it may be conceded, in the first place, that the Law Courts have a right (with a view to the protection of individual liberty) to inquire whether the warrants issued by order of Parliament are accurate in form, whether they have been correctly enforced, and whether the authority they convey has not been exceeded. On the other hand, it ought to be declared a sufficient defence against actions of libel, for the defendant to show under the hand of the Speaker, that anything was printed by order of the Legislature, or anything orally communicated in the course of an investigation by the Legislature. By conceding to the Courts of Law such a limited power of inquiry, Parliament would escape the invidious appear- ance of acting as judge in its own case : it would enable the Courts of Law to prevent the servants of the Legislature from abusing any power intrusted to them • and it would protect all who are called upon by the Legislature topromote inquiries in- stituted for public advantage. High "privilege" sticklers demur to a proceeding which would attribute to the Crown and Peers a share in the definition of the privileges of the Commons. But such a measure would in return allow the House of Commons a voice in defining the privileges of the Peers ; and the Crown is in practice merely another name for a few Members of the Houses of Peers and Commons. The House of Commons would have the power to reject any invidious amendments. There does not appear any greater rational objection to allow the coiirdinate legislative authorities a voice in defining the privileges of the Commons, than there was to allow them C111 the Reform Act) & voice in prescribing the mode of forming the House. A prompt resolution is desirable. Even while we write, a new privilege question has arisen, and a very cruel one. Stockdale and Howard may be supposed to be quite as much pleased with the eclat they have obtained as annoyed by anything they have suffered. But Mr. Parrott's case shows how a luckless Wight may be innocently placed between two fires—the House of Com- mons thundering against him if he don't answer its questions, the Court of Queens Bench if he do.
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