THE QUESTION OF PRIVILEGE.
gut ROBERT PEEL—the guardian angel of the Whig Ministry— propounded the only tenable argument in support of the line of conduct which Ministers have persuaded the House of Commons to adopt in respect to the question of privilege, that was advanced in the course of the debate ; and in return for this good service, Lord JOHN RUSSLLL in the House, and the Ministerial journals out of it, have, as in duty bound, paid Sir ROBERT handsome com- pliments.
Sir Ronsur said—" He firmly believed that this privilege of publication was essential to the House. Ile did not conceive that they could act as a House of Commons unless they had the power of publishing, not only for their own use, but for the information of the public, what they considered necessary." And again- " There were many questions of legislation on which it was essen- tial that time public mind should be informed, as well as the Mem- bers of that house ; and he must maintain that the power of publication was necessary flir them as a House of Commons."
On the other hand, no man of common sense but must feel that the method by which the House of Commons seeks to uphold and defend this power of publication is of an extremely questionable
character. The House claims a privilege resting upon an ex parte resolution of its own. The House refuses to submit the question
arising out of this asserted privilege to the decision of any tri- bunal but itself': it claims to be judge in its own cause. It is pos- sible that a numerous body like the House of Commons may be in the wrong in a dispute between it and an individual : it is just as unsafe to alloyr a corporate person of this kind to pronounce judg- ment in his own cause, as it would be to allow a single person to do so. A goAd constitution of gove;.mucnt is one that insures to every indin idual safety of person and property a constitution is not good Whiell, by allowing any individual or any body of indivi- duals to els:aline the judicial tribunals, puts him or them in a posi- tion to do harm with impunity.
It appears therefione, that Sir RoBERT PEEL is right ; and it ap- pears at the same time that those who take the opposite side of
the question are right. Whenever this is the case in questions of general policy, it may be assumed that something has been over- looked by both parties that is essential to a right decision. There must be some third position, tenable by those who, uninfluenced by partisan feeling, seek for truth, and for institutions conducive to the public weal.
We see the necessity of giving to a legislative body the power of publishing the inSomation upon which it legislates. We see the danger of conceding to the members of a legislative body the power
of being judges in their own cause when any dispute arises between them in their corporate capacity and a private individual. Is it impossible to secure to the House of Commons the necessary lati- tude of publication, without conferring upon it it privilege so liable to abuse as that of being at once plaintiff and judge ? The first thing that strikes one on proceeding to further inquiry, is the incompetency of the privilege claimed by the House of Com- mons to insure that publicity which Sir ROBERT Prism justly assumes to be necessary to the right discharge of its duties. The printing and sale of the huge Reports of Parliament does not and cannot in- sure publicity. The public has neither time nor inclination to winnow the two grains of wheat that lie hid in these bushels of chaff: It is the labour bestowed by journalists, pamphleteers, et hoc' genus ovine, upon the Parliamentary publications, that produces the desired publicity. But Sir ROBERT does not think of extend- ing his privilege to all who may ventilate the truths inaccessible in these bulky tidies. Even allowing the Parliamentary Report to say what it pleases of' STOCKDALE'S publications, how touch nearer are we to real publicity, it' STOCKDALE, armed with the law of libel, may pounce upon the first newspaper that gives an extract front the Report ? Viewing the matter from this point, as a ques- tion of fair play, its aspect is revolting. Suppose some historical writer to avail himself of information safely printed by order of the House of Commons: he may be amerced in damages for pub- lishing (and publishing with, at the least, as high and pure a mo- tive) what the printer and publisher of the House of Commons has published with impunity. Would Sir ROBERT give the House at monopoly of that species of information, so gratifying to the innate love of human beings to pry into the conduct of their neighbours?
The mere assertion, therefire, of the privilege of the House of Commons, will not insure the necessary publicity. Is it the mere disregard of that privilege that threatens to prevent publicity ? Might it not be possible, without conceding to the House of Com- mons any greater latitude of publication than is conceded to any private citizen, and without conferring upon it the anomalous power of judging in its own cause, to assure to it as wide a power of giving publicity to filets as is necessary to a right discharge of its legislative duties? Let us not deceive ourselves with words. The Crown can both sue and be sued in courts of law. What is riot derogatory to the dignity of the supreme executive autho- rity, cannot be derogatory to the dignity of a part of the supreme legislative‘authority. On the other hand, if it be necessary for the ends of public justice that the Legislature should have it in its power to publish all filets that it may concern the public to know, so that they be lets and published with no malevolent intenteIt is equally indispensable to the ends of public jus- tice that every private individual enjoy the same liberty. It is not the jurisdiction claimed by the Judges over the servants of the House of Commons that endangers the dignity and usefulness of that branch of the Legislature. It is the viciouscharacter of the libel law, which the Judges, in virtue of their office, must administer. To place the dignity of the House in perfect safety, to remove its legislative utility beyond the reach of danger, with- out for one moment coining into collision with the coordinate dig- nity and usefulness of the Judges, is a simple and easy process. Retbrin the law of libel. The Judges cannot refuse to administer whatever the Legislature wills to be law. The present seems to be a fitting occasion for inviting attention to the distribution of the functions of goverument and its uses. In the more complex notion of a government, are combined the more simple notions of the powers of legislation, judgment, and execu- tion or administration : e. the power of ilevising and promulgat- ing laws, of declaring the application of those laws to individual cases, and of enforcing the laws and judgments by physical means. Experience taught, at an early period of organized civil society, the danger of vesting all these powers cumulatively in the hands of one individual or body. The judge, when allowed to make the law, is too apt to make it " for time nonce "—to subject men to ex post facto laws. The legislator, when allowed to act the judge, is sorely tempted on many occasions to attribute a meaning to his law winch perhaps it ought to have had, but which from clumsi- ness or forgetfulness he omitted to make it convey. When with the executive power is combined the legislative or judicial, the same danger is incurred. In short, whoever or whatever be the sove- reign—wherever author/I j in the last resort may be vested—it is ne- cessary to the security of the individual citizen, that the discharge of the legislative, judicial, and executive functions, be vested in dif-
ferent ministers; and that each of the three delegated functionaries (or classes of functionaries) be jealously on the watch to prevent the encroachment of either of the others upon his or their peculiar province. As to dignity, they are all equally indispensable parts of a practical government ; and each may without disgrace submit to the other in that other's especial province. It is from this view of the fimetions of government and their distribution, that we must set out if we would come to a right de- cision in the question now at issue between the House of Commons
and time Judges. None but an Irish partisan would dream that the character or dealings of the individual out of whose suit the ques-
tion has emerged have any thing to do with it. But more than this, neither ought the consideration whether the decisions of the Bench be good or bad law have any thing to do with it. This is the question—Is the House of Commons seeking to encroach upon the legitimate province of the Judges? or are time Judges invading the rightful province of the House of Commons ? Viewing the matter in this light, there dues not seem to us to be room fin' a moment's doubt, that the House of Commons is ad- vancieg a claim which cannot be conceded to it. By the law of England, there can exist no wrong for which the Law Courts do not afford redress. The Ilouse of Commons says—" Yes, we will do what the law declares to be a wrong—what we ourselves would
maintain to be a wrong if done by a private individual; and yet for this wrong the Law Courts shall be unable to afford re- dress." It is not safe to allow 658 individuals to do with im- punity what is wrong in others; as it is unjust to prevent others from doing what is not wrong in these individuals. And even apart from this consideration, it is unsafe to allow these individuals to act as judges in their own cause. The temper in which the inves- tigation has been carried on in the House of Commons shows this : the decision to which the House of Commons has come shows this. It was assumed by all the speakers in the majority that the motives of STOCKDALE and his attorney were bad. Questions were put calculated to lead STOCKDALE to criminate himself. The Attorney-General so far lost his temper as to accuse those who differed from him in opinion of " having done all in their power to lower the dignity of the House." And as for the decision, the house has punished the Sheriff's for doing what they could not help doing—for not, in their purely ministerial capacity, obeying an order of court, for disobeying which they would have been punished. We have endeavoured to arrive at the truth in discussing this question. - We have come to its investigation perfectly free from undue bias. We believe on the one hand, that both judges and le- gislators are liable to error. We believe on the other hand, that it is indispensable to the safety of the citizen and the maintenance of civil order, that both judges and legislators be provided with full power for the discharge of their respective functions, and with not one iota of power beyond what is requisite for that purpose. It is the necessary tendency of human nature to abuse the power with which it may be intrusted ; and we think, therefore, that it is of importance to limit the extent and watch over the exercise of the power delegated to members of the Legislature, as closely as over that delegated to the occupants of the Bench. The temper displayed by the rival authorities during the contest is a very subordinate consideration ; although it is no more than justice to the Judges to say, that the calm dignity of their conduct through- out has presented a contrast to the heat of the Commons, the very reverse of creditable to the latter body.
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