as in him lay, these two princes;' and the like at other times. Claiming the privilege of punishing by pillory and fine, on what they called impeachment, that is, an impeachment by themselves as accusers before themselves as judges, the Commons passed a sentence, calculated to efface all memory of those misdeeds of the Star-Chamber and High Commission Court, which soon after brought about the Civil Wars. Their resolution was, that Floyd's body should be scourged, tortured, mutilated, his feelings insulted, and his estate burdened with a fine of £1000.

That the affair, between judgment and execution, was wrested out of the hands of the House of Commons, and subsequently disposed of by the Lords, who maintained with some heat that this sentence was a deep infringement of their privileges, only aggravates the enormity. The Commons humbly deferred to this claim the sole judges of their own privileges confessed that they had volunteered the exercise of a power which they did not possess. They however entreated their Lordships, that so heinous an offence might not escape condign punishment; and the Upper House, profiting by the example of the Lower,-catching the infection of their Protestant zeal and loyal indignation, pronounced a still severer sentence. Their Lordships, to the pillory and exposure, added a whipping at the cart's-tail. Some scrupulous peers, a small minority, would have excused him the whipping, because Floyd was a gentleman: none appear to have thought this circumstance any objection to nailing his ears to the pillory, or parading him through London and Westminster on horseback, with a placard on his back, with his face towards the beast's tail. Their Lordships multiplied the fine fivefold, declared him infamous and incompetent to be a witness, and directed him to be imprisoned for the term of his life. He was not, however, in fact whipped, though in all other particulars the sentence was rigidly enforced.

When, in the course of some great constitutional contest, abhorrence of the judicial misconduct of Jefferies and Scroggs had been coupled with the wish that their very names might be blotted out from the memory of man, Erskine exclaimed, No! let 'them be held in everlasting remembrance! let them be handed ' down with shame and execration to the end of time !'-So let this hideous story of the sufferings of Edward Floyd be studied as an awful and practical lesson! A lesson to the community, showing every individual to what he may be exposed by the claims of arbitrary power;-a still more affecting lesson to the humane, the just, the enlightened, of the excesses of guilt and infamy into which they may be plunged by asserting such a claim. For here was no unwatched drunken rabble, no sudden impulse

of excited savages: we have the recorded deliberation and the public conduct of the knights, citizens, and burgesses; and finally of the brave peers of England, the most cultivated part of a highly civilized nation-the statesmen, the lawyers, the landowners and merchants-the peers and prelates of a country long renowned in arts and arms, the contemporary admirers of Shakspeare and Bacon, the patrons of Milton and Waller;-all the leading men in a wealthy and powerful country, which even then boasted that it had enjoyed for hundreds of years the inestimable blessings of law and liberty.

·

The reign of Charles I. gives cause for much reflection on the subject of Privilege. The Long Parliament met in 1640, and passed many valuable laws. The abolition of the Star-Chamber and High Commission Court, and of the right of the Privy Council to try criminal matters, is enumerated by Lord Brougham among the great and glorious achievements of this re'nowned body.' But he censures all their subsequent proceedings, as framed, and possibly intended, to alter the form of 6 government.' Nor can any man deny that some of their claims of Privilege were absurd as the vote that Archbishop Laud's church ceremonies were a breach of the privileges of the House of Commons ;-some treasonable-as the votes to levy an army against the King-if the constitution was considered as resting on its lawful basis. The defence of the Long Parliament is, that the King's violations of the law had thrown the constitution off its bias, and proved his determination to rule independent of all its checks and controls. If they were justified in foro conscientia for their resistance to this overstrained usurpation, under the name of prerogative, by opposing to it the only power they possessed-or rather by setting up a power never used before, and investing it with the venerable and well-known. name of Privilege-their proceedings with that object can furnish no argument for the extent of power which the laws and constitution will recognise in peaceful times.

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Walpole speaks with rapturous admiration of Quin's answer to the question, By what law could they execute the King?'By all the law that he had left them.' The law of necessity, which supersedes all other; the law of self-defence, of which, however applied, the unjust aggressor has no right to complain.

* Pol. Phil. Vol. iii. p. 276.

† The Long Parliament had become executive as well as legislative, when it performed some of its boldest operations, such as condemning Paul Best to death for denying the Trinity. He was executed by virtue of an ordinance in 1646, not under a vote for breach of privilege.

In the commencement of those troubles, if the Commons could avert arbitrary power by no other means than the pretence of Privilege-if that weapon, non hos quæsitum munus in usus, was the only one they had the power to grasp-Pym and Hampden might be bound to wield it, however repugnant to the elemental constitution of a mixed government acting upon known laws; yet the shades of these great men have been preposterously invoked, as giving a sanction to interference with the administration of the laws, in the days of King William IV. and Queen Victoria.

Rulers and subjects may draw lessons of public morality and expediency from these tumultuous periods; but they furnish no precedents that can be applied when the empire of the law is reestablished. The establishment of that empire, secured by the independence of the judges, is perhaps the most legitimate object of those struggles, and the prize not too dearly bought by all the horrors that accompanied them. They had hardly ceased during the reign of Charles II., or, if it might be truly said that the storm had subsided,

if the terror of the times was past,

There still remain'd the scatterings of the blast.'

The unsettled opinions of men, and the violent contention of parties, often shook the tranquillity of the state. Could any thing prove it more strongly, than that the House of Commons elected in 1679 proceeded, almost immediately on their meeting, to punish their fellow-subjects who had exercised their undoubted right of petitioning the Crown on the exercise of an important and equally unquestioned prerogative, that of summoning a Parliament? Such petitions were visited as a breach of the privileges of that House of Commons, which had no existence when they were preferred. That our trustees, elected by ourselves, of whom no Englishman ought to say that it is possible for them to exercise a despotic power, or do any thing amiss,' should vote a petition to the Crown on public affairs a breach of privilege, appears like an incredible fable. Numerous, however, were the victims who could attest its truth. The sergeant-at-arms seized them by the hundred, and detained them till they paid money for their liberation. The people's representatives lodged their constituents in jail, in the name of Privilege, for daring to express their opinion on the conduct of a former Parliament. The grand-jury of Devon were thus dealt with by the House of Commons in which a Whig majority bore sway.

In 1701, the same drama was acted, but with the characters reversed. The grand-jury of Kent ventured to approach the House of Commons with a strong remonstrance against the

Tory government of Queen Anne, for deserting the policy of King William and his Whig ministers. For presenting this petition, Mr Colepeper was imprisoned till the end of the session! What must be said of these proceedings? Were they altogether an abuse? Did the House at those different periods assume a privilege which they did not possess a privilege inconsistent with their primary duty,-that of redressing the grievances of the people, which can be known by no other means so well as by their petition? Or did they but abuse the privilege of committing for contempt as a punishment for libels ?

Of the inquisitorial functions of the House of Commons we hear much, and all Englishmen hear it with pride and satisfaction. These functions have been so exercised as to produce examples of signal benefit to the country: their existence is no mean security against flagrant misgovernment. Information must often have proceeded from polluted sources; but the House were not answerable for its truth, or the respectability of witnesses: they were bound to receive all that was offered, and to seek for all that could be obtained. They might, indeed, have reasonably paused before they adopted for any purpose whatever the depositions of professed spies and double traitors; and when Dangerfield accused James II., then Duke of York, of compassing the murder of his brother, he seemed to warn them against too readily believing a charge so atrocious. They would have properly stored up the statement, which, however incredible, might have derived confirmation from the developments of time, from other facts, from witnesses less infamous. Here was good ground for vigilance and precaution-a good foundation for further enquiries. This was the USE of Privilege.

But the Commons were not satisfied with securing the custody of these secret denunciations. They printed, published, sold them for money, sanctioned by the signature of their Speaker. No doubt, the price was moderate; and a handsome discount allowed the Trade to make large purchases of this foulest of all libels. And in what manner was the revenue thus raised to be employed? The profits of the sale were given to the slanderer!-a premium on secret falsehood, a temptation to other unprincipled men, a prejudice to the fairness of that trial which would have ensued if they had dared to test the truth of the evidence by an open impeach

ment.

The attorney-general afterwards prosecuted Sir William Williams, the Speaker, who, by order of the House, had published Dangerfield's information. He was convicted, and fined L.10,000, (of which he is said to have paid L.8000,)—his plea of parliamentary privilege being overruled by the court. The Earl of Peterborough, calumniated in the same document, brought

his action for libel against the Speaker, who did not attempt to set up the claim of Privilege in this civil action, but suffered judgment by default, and had to pay considerable damages. And these judgments were not reversed or questioned in any court of error; nor so, as many others were, condemned by the Parliament of King William.

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No argument is required to prove that this series of proceedings was an outrageous ABUSE of one of the most valuable privileges entrusted by the constitution to the House of Commons.

Interference with the course of justice was not reserved for the year 1845. It occurred one hundred and seventy years before, and exhibited some most singular features. The Commons, in an appeal case between Shirley and Fagg, and in two or three other cases then pending, asserted a privilege which they had claimed before, but have not always maintained. They resolved that the Lords had no right to decide appeals from courts of equity, where members of the Lower House were parties. Afterwards, they threw down this too invidious distinction; and declared that the Lords had no such right when any commoner was a party. They followed up their solemn resolution with one of the gravest import and most practical character, menacing the legal agents of parties prosecuting such appeals with their highest displeasure :— Whoever shall solicit, plead, or prosecute any such appeal against any commoner, shall be proceeded against as a betrayer of the ' rights and liberties of the people of England.' One of the best speeches ever delivered in the House of Lords, was made by the first Earl of Shaftesbury in support of the judicature of the Lords, and against the interference of the Commons. The Lords+ had formerly taken notice of the imprisonment of the four counsellors, and resolved it to be an unexampled usurpation and breach of privilege against the House of Peers-a transcendent invasion on the right and liberty of the subject, and against • Magna Charta, the Petition of Right, and many other laws, which have provided that no freeman shall be imprisoned, or otherwise restrained of his liberty, but by due process of law.' The Commons acted up to their recorded resolution, and sent four counsellors to prison for discharging their professional duty. These gentlemen sued out their habeas corpus, but were remanded by an obsequious court of law. They questioned the legality of this remand by a writ of error, which must have come on for decision in the House of Lords. To avoid the embarrassment and

*See Cobbett's Parliamentary History, Vol. iv. † Journal, June 3, 1675.

p. 791.