political views they have confidence; and their representative enters the Legislature a free agent, to assist in its deliberations, and to form his own independent judgment upon all public measures. If the contrary were universally the rule, representatives would become delegates; and government by the entire body of the people, would be substituted for representative institutions. But the political conditions of our own time have brought occasional pledges more into harmony with the spirit of the constitution. The political education of the people, the publicity of all parliamentary proceedings, and the free discussions of the press, have combined to force upon constituencies, the estimation of measures as well as men. Hence candidates have sought to recommend themselves by the advocacy of popular measures; and constituents have expected explicit declarations of the political faith of candidates. And how can it be contended that upon such measures as catholic emancipation, parliamentary reform, and the repeal of the corn laws, constituencies were not entitled to know the opinions of their members? Unless the electors are to be deprived of their voice in legislation, such occasions as these were surely fit for their peculiar vigilance At a dissolution, the Crown has often appealed directly to the sense of the people, on the policy of great public measures; and how could they respond to that appeal without satisfying themselves regarding the opinions and intentions of the can

1 There is force, but at the same time exaggeration, in the opinions of an able reviewer upon this subject. "For a long time past we have, unconsciously, been burning the candle of the constitution at both ends; our electors have been usurping the functions of the House of Commons, while the House of Commons has been monopolizing those of the Parliament.". Ed. Rev., Oct. 1852, No. 196, p. 469. Again, p. 470: "In place of selecting men, constituencies pronounce upon measures; in place of choosing representatives to discuss questions and decide on proposals in one of three coördinate and coequal bodies, the aggregate of which decree what shall be enacted or done, electors consider and decree what shall be done themselves. It is a reaction towards the old Athenian plan of direct government by the people, practised before the principle of representation was discov ered."

didates? Their response was found in the majority returned to the new Parliament, directly or indirectly pledged to support their decision.1

But while the right of electors to be assured of the political opinions of candidates has been generally admitted, the first principles of representative government are ever to he kept in view. A member, once elected, is free to act upon his own convictions and conscience. As a man of honor, he will violate no engagement which he may have thought it becoming to accept; but if he has a due respect for his own character, and for the dignity of his office, he will not yield himself to the petty meddling and dictation of busy knots of his constituents, who may assume to sway his judgment. Such being the multiplied relations of Parliament to the people, let us inquire how, since its early excesses privilege dis- in the reign of George III., it has deferred to the

Servants'

own.

continued. law, and respected other jurisdictions besides its The period signalized by the ill-advised attempts of the House of Commons to enlarge its powers, and assert too tenaciously its own privileges, was yet marked by the abandonment of some of its ancient customs and immunities. From the earliest times, the members of both Houses had enjoyed the privilege of freedom from arrest in all civil suits and this immunity, useful and necessary as regarded themselves, had also extended to their servants. The abuses of this privilege had long been notorious; and repeated attempts had already been made to discontinue it. For that purpose bills were several times passed by the Lords, but miscarried in the Commons. At length, in 1770, a bill was agreed to by the Commons, and sent up to the House of

1 Speeches from the throne, 24th March, 1784; 27th April, 1807; 22d April, 1831; 21st March, 1857.

2 Lord Mansfield's speech, May 9th, 1770; Parl. Hist. xvi. 974. 8 Walpole says: "The bill passed easily through the Commons, many of the members who were inclined to oppose it, trusting it would be rejected in the other House."— Mem. iv. 147. But this is scarcely to be reconciled with the fact that similar bills had previously been passed by the Lords.

Lords. There it encountered unexpected opposition from several peers; but was carried by the powerful advocacy of Lord Mansfield.1 Nor was this the only privilege restrained by this useful Act. Members and their servants had formerly enjoyed immunity from the distress of their goods, and from all civil suits, during the periods of privilege. Such monstrous privileges had been flagitiously abused; and few passages in parliamentary history are more discreditable than the frivolous pretexts under which protections were claimed by members of both Houses, and their servants. These abuses had already been partially restrained by several statutes; 2 but it was reserved for this Act, to leave the course of justice entirely free, and to afford no protection to members, but that of their persons from arrest.

the bar.

This same period witnessed the renunciation of an offensive custom, by which prisoners appeared before Prisoners either House to receive judgment, kneeling at the kneeling at bar. Submission so abject, while it degraded the prisoner, exhibited privilege as odious, rather than awful, in the eyes of a free people. In the late reign, the proud spirit of Mr. Murray had revolted against this indignity; and his contumacy had been punished by close confinement in Newgate. But in 1772, when privilege was most unpopular the Commons formally renounced this opprobrious usage, by standing order. The Lords, less candid in their proceed ings, silently discontinued the practice; but, by fictitious entries in their journal, still affected to maintain it.

Parliament, having relinquished every invidious privilege, has not been without embarrassments in exercising Privilege and the powers necessary for maintaining its own au

1 10 Geo. III. c. 50.

2 12 & 13 Will. III. c. 3; 2 & 3 Anne, c. 18; 11 Geo. II. c. 24.

the Courts.

8 Parl. Hist. xiv. 894; Walpole's Mem. of Geo. II. i. 15. In 1647, David Jenkins, a Royalist Welsh judge, had refused to kneel before the Coinmons; and Sir John Maynard, Sir John Gayre, and others, before the Lords.Com. Journ. v. 469; Parl. Hist. iii. 844, 880.

4 March 16th, 1772; Com Journ. xxvi. 48.

thority and independence, and which, if rightly used, are no restraint upon public liberty. Each House has exercised a large jurisdiction, in declaring and enforcing its own privileges. It administers the law of Parliament: the courts administer the law of the land; and where subjects have considered themselves aggrieved by one jurisdiction, they have appealed to the other.1 In such cases the appeal has been to inferior courts, to courts whose judgments may again be reviewed by the High Court of Parliament. The courts, without assuming the right to limit the privileges of Parliament, - have yet firmly maintained their own unfettered jurisdiction, to try all causes legally brought before them; and to adjudge them according to the law, whether their judgment may conflict with privilege, as declared else where, or not. A court of equity or common law can stay actions, by injunction or prohibition: but neither House is able to interdict a suit, by any legal process. Hence embarrassing contests have arisen between Parliament and the

courts.

Case of Sir

dett.

The right of both Houses to imprison for contempt, had been so often recognized by the courts, on writs Francis Bur- of habeas corpus, that it appeared scarcely open to further question. Yet, in 1810, Sir Francis Burdett denied the authority of the Commons, in his place in Parliament. He enforced his denial in a letter to his constituents; and having himself been adjudged guilty of contempt, he determined to defy and resist their power. By direction of the House, the Speaker issued his warrant for the commitment of Sir Francis to the Tower. He disputed its legality, and resisted and turned out the Sergeant, who came to execute it: he barred up his house; and appealed for protection to the Sheriffs of Middlesex. The mob took his part, and being riotous, were dispersed in the streets, by the military. For three days he defended himself in his house,

1 All the principles and authorities upon unis matter are collected in Chap I. of the author's Treatise on the Law and Usage of Parliament.

while the authorities were consulting as to the legality of breaking into it, by force. It was held that the Sergeant, in executing the Speaker's warrant, would be armed with all the powers of the law; and accordingly, on the third day that officer having obtained the aid of a sufficient number of constables, and a military force, broke into the beleaguered house, and conveyed his prisoner to the Tower.1 The commitment of a popular opponent of privilege was followed by its usual consequences. The martyred prisoner was an object of sympathy and adulation,

denounced as tyrants and oppressors.

the Commons were

Overcome by force, Sir Francis brought actions against the Speaker and the Sergeant, in the Court of King's Bench, for redress. The House would have been justified by precedents and ancient usage, in resisting the prosecution of these actions, as a contempt of its authority; but instead of standing upon its privilege, it directed its officers to plead, and the Attorney-General to defend them. The authority of the House was fully vindicated by the court; but Sir Francis prosecuted an appeal to the Exchequer Chamber, and to the House of Lords. The judgment of the court below being affirmed, all conflict between law and privilege was averted. The authority of the House had indeed been questioned; but the courts declared it to have been exercised in conformity with the law.

Where the courts uphold the authority of the House, all is well: but what if they deny and repudiate it? Since the memorable cases of Ashby and White, and the electors of Aylesbury in 1704, no such case had arisen until 1837: when the cause of dispute was characteristic of the times. In the last century, we have seen the Commons contending for the inviolable secrecy of all their proceedings: now they are found declaring their inherent right of publishing all their own papers, for the information of the public.

The circumstances of this case may be briefly told. In

1 Ann. Reg 1810, p. 344; Hansard's Deb. xvi. 257, 454, &c.