642

BREACH OF PRIVILEGE.

spoken of the houses of parliament, as if their sphere were too low for the cognizance of such a transcendent authority. The same language, almost to the words, was heard from the lips of the Hydes and Berkeleys in the preceding age, in reference to the king and to the privy council. But as, when the spirit of the government was almost wholly monarchical, so since it has turned chiefly to an aristocracy, the courts of justice have been swayed toward the predominant influence; not, in general, by any undue motives, but because it is natural for them to support power, to shun offense, and to shelter themselves behind precedent. They have also sometimes had in view the analogy of parliamentary commitments to their own power of attachment for contempt, which they hold to be equally uncontrollable, a doctrine by no means so dangerous to the subject's liberty, but liable also to no trifling objections.

CHAP. XVI.

breaches of privilege. I would not be understood, however, to point at any more recent discussions on this subject; were it not, indeed, beyond the limits prescribed to me, it might be shown that the house of commons, in asserting its jurisdiction, has receded from much of the arbitrary power which it once arrogated, and which some have been disposed to bestow upon it.

This important topic of parliamentary privilege has been fully discussed, since the first publication of the present work, in the well-known proceedings to which the action Stockdale vs. Hansard gave rise. In trying this case, lord Denman told the jury, that the order of the house of commons was not a justification for any man to publish a private libel. In consequence of this decision, the house of commons resolved, May 30, 1837, That, by the law and privilege of parliament, this house has the sole and exclusive jurisdiction to The consequences of this utter irrespon- determine upon the existence and extent sibility in each of the two houses will ap. of its privileges, and that the institution pear still more serious when we advert to or prosecution of any action, suit, or other the unlimited power of punishment which proceeding, for the purpose of bringing it draws with it. The commons, indeed, them into discussion or decision, before do not pretend to imprison beyond the ses- any court or tribunal elsewhere than in sion; but the lords have imposed fines and parliament, is a high breach of such prividefinite imprisonment, and attempts to re-lege, and renders all parties concerned sist these have been unsuccessful. If the therein amenable to its just displeasure, matter is to rest upon precedent, or upon and to the punishment consequent therewhat overrides precedent itself, the abso- on. And, that for any court or tribunal lute failure of jurisdiction in the ordinary to assume to decide upon matters of privicourts, there seems nothing (decency and lege inconsistent with the determination discretion excepted) to prevent their re- of either house of parliament, is contrary peating the sentences of James I.'s reign-to the law of parliament, and is a breach whipping, branding, hard labor for life. and contempt of the privileges of parliaNay, they might order the usher of the ment. black-rod to take a man from their bar, Of these resolutions, which, as is obviand hang him up in the lobby. Such ous, go far beyond what the particular things would not be done, and, being done, case of Stockdale required, it has been would not be endured; but it is much that well said, in an excellent pamphlet by Mr. any sworn ministers of the law should, Pemberton Leigh, which really exhausts even by indefinite language, have counte- the subject, and was never so much as nanced the legal possibility of tyrannous tolerably answered, that "The question power in England. The temper of gov- now is, whether each house of parliament ernment itself, in modern times, has gen- has exclusive authority to decide upon the erally been mild; and this is probably the existence and extent of its own privileges, best ground of confidence in the discretion to pronounce at its pleasure upon the of parliament; but popular, that is, nu- breach of those privileges, to bind by its merous bodies, are always prone to excess, declaration of law all the queen's subjects, both from the reciprocal influences of their between whom in a court of justice a quespassions, and the consciousness of irre- tion as to privilege may arise, and to punsponsibility, for which reasons a democ-ish at its discretion all persons, suitors, racy, that is, the absolute government of attorneys, counsel, and judges, who may the majority, is in general the most tyran- be concerned in bringing those privileges nical of any. Public opinion, it is true, in into discussion in a court of justice dithis country, imposes a considerable re-rectly or indirectly."-Pemberton's Letter straint; yet this check is somewhat less to Lord Langdale, p. 4.-1837. powerful in that branch of the legislature which has gone the farthest in chastising

In the debates which ensued in the house of commons, those who contended for un

limited privilege fell under two classes: queen's bench, is recent in our rememsuch as availed themselves of the opinions brance; as well as that the immediate of the eleven judges who dissented from question was set at rest by a statute, 3 & Holt, in Ashby vs. White, and of some later 4 Vict., c. 9, which legalizes publications dicta and such as, apparently indifferent under the authority of either house of to what courts of justice may have held, parliament, leaving, by a special proviso, rested upon some paramount sovereignty their privileges as before. But the main of the houses of parliament, some uncon-dispute between arbitrary and limited trollable right of exercising discretionary power is by no means determined; and, power for the public good, analogous to while great confidence may be placed in what was once supposed to be vested in the caution which commonly distinguishes the crown. If we but substitute preroga- the leaders of parties, there will always be tive of the crown for privileges of parlia- found many who, possessing individually ment in the resolutions of 1837, we may a small fraction of despotic power, will ask whether, in the worst times of the Tu- not abandon it on any principle of respectdors and Stuarts, such a doctrine was ever ing public liberty. It is observable, though laid down in express terms by any grave easily to be accounted for, and conformaauthority. With these there could be no ble to what occurred in the long parliaargument; the others had certainly as ment, that, among the most strenuous asmuch right to cite legal authorities in their sertors of unmeasured privilege, are genfavor as their opponents. erally found many not celebrated for any peculiar sympathy with the laws, the crown, and the constitution.

The commitment of the sheriffs of London, in 1840, for executing a writ of the

644

SCOTS PARLIAMENT.

CHAP. XVII,

CHAPTER XVII.

ON THE CONSTITUTION OF SCOTLAND.

1. Early State of Scotland. Introduction of Feudal System. § 2. Scots Parliament. 3. Power of the Aristocracy. § 4. Royal Influence in Parliament. § 5. Judicial Power. Court of Session. § 6. Reformation. § 7. Power of the Presbyterian Clergy. Their Attempts at Independence on the State. Andrew Melville. § 8. Success of James VI. in restraining them. § 9. Establishment of Episcopacy. § 10. Innovations of Charles I. § 11. Arbitrary Government. § 12. Civil War. § 13. Tyrannical Government of Charles II. §14. Reign of James VII. 15. Revolution and Establishment of Presbytery. 16. Reign of William III. § 17. Act of Security. Union. Gradual Decline of Jacobitism.

§ 1. Ir is not very profitable to inquire into the constitutional antiquities of a country which furnishes no authentic historian, nor laws, nor charters, to guide our research, as is the case with Scotland before the twelfth century. Her institutions were wholly Celtic until that era, and greatly similar to those of Ireland. A total, though probably gradual, change must therefore have taken place in the next age, brought about by means which have not been satisfactorily explained. The crown became strictly hereditary, the gov ernors of districts took the appellation of earls, the whole kingdom was subjected to a feudal tenure, the Anglo-Norman laws, tribunals, local and municipal magistracies, were introduced as far as the royal influence could prevail; above all, a surprising number of families, chiefly Norman, but some of Saxon or Flemish descent, settled upon estates granted by the kings of Scotland, and became the founders of its aristocracy. It was, as truly as some time afterward in Ireland, the encroachment of a Gothic and feudal polity upon the inferior civilization of the Celts, though accomplished with far less resistance, and not quite so slowly. Yet the Highland tribes long adhered to their ancient usages; nor did the laws of English origin obtain in some other districts, two or three centuries after their establishment on both sides of the Forth.

§ 2. It became almost a necessary consequence from this adoption of the feudal system, and assimilation to the English institutions, that the kings of Scotland would have their general council or parliament upon nearly the same model as that of the Anglo-Norman sovereigns they so studiously imitated. If the statutes ascribed to William the Lion,

contemporary with our Henry II., are genuine, they were enacted, as we should expect to find, with the concurrence of the bishops, abbots, barons, and other good men (probi homines) of the land; meaning doubtless the inferior tenants in capite. These laws, indeed, are questionable, and there is a great want of unequivocal records till almost the end of the thirteenth century. The representatives of boroughs are first distinctly mentioned in 1326, under Robert I.; though some have been of opinion that vestiges of their appearance in parliament may be traced higher; but they are not enumerated among the classes present in one held in 1315. In the ensuing reign of David II., the three estates of the realm are expressly mentioned as the legislative advisers of the crown.

A Scots parliament resembled an English one in the mode of convocation, in the ranks that composed it, in the enacting powers of the king, and the necessary consent of the three estates, but differed in several very important respects. No freeholders, except tenants in capite, had ever any right of suffrage; which may, not improbably, have been in some measure owing to the want of that Anglo-Saxon institution, the county court. These feudal tenants of the crown came in person to parliament, as they did in England till the reign of Henry III., and sat together with the prelates and barons in one chamber. A prince arose in Scotland in the first part of the fifteenth century, resembling the English Justinian in his politic regard to strengthening his own prerogative and to maintaining public order. It was enacted by a law of James I., in 1427, that the smaller barons and free tenants "need not to come to parliament, so that of every sheriffdom there be sent two or more wise men, chosen at the head court," to represent the rest. These were to elect a speaker, through whom they were to communicate with the king and other estates. This was evidently designed as an assimilation to the English house of commons. But the statute not being imperative, no regard was paid to this permission; and it is not till 1587 that we find the representation of the Scots counties finally established by law; though one important object of James's policy was never attained, the different estates of parliament having always voted promiscuously, as the spiritual and temporal lords in England.

§ 3. But no distinction between the national councils of the two kingdoms was more essential than what appears to have been introduced into the Scots parliament under David II. In the year 1367, a parliament having met at Scone, a

646

POWER OF THE ARISTOCRACY.

CHAP. XVII.

committee was chosen by the three estates, who seem to have had full powers delegated to them, the others returning home on account of the advanced season. The same was done in one held next year, without any assigned pretext. But in 1369 this committee was chosen only to prepare all matters determinable in parliament, or fit to be therein treated, for the decision of the three estates on the last day but one of the session. The former scheme appeared possibly, even to those careless and unwilling legislators, too complete an abandonment of their function; but, even modified as it was in 1369, it tended to devolve the whole business of parliament on this elective committee, subsequently known by the appellation of lords of the articles. It came at last to be the general practice, though some exceptions to this rule may be found, that nothing was laid before parliament without their previous recommendation; and there seems reason to think that in the first parliament of James I., in 1424, such full powers were delegated to the committee as had been granted before in 1367 and 1368, and that the three estates never met again to sanction their resolutions. The preparatory committee is not uniformly mentioned in the preamble of statutes made during the reign of this prince and his next two successors; but there may be no reason to infer from thence that it was not appointed. From the reign of James IV. the lords of articles are regularly named in the records of every parliament.

It is said that a Scots parliament, about the middle of the fifteenth century, consisted of near 190 persons. We do not find, however, that more than half this number usually attended. A list of those present in 1472 gives but fourteen bishops and abbots, twenty-two earls and barons, thirtyfour lairds or lesser tenants in capite, and eight deputies of boroughs. The royal boroughs entitled to be represented in parliament were above thirty; but it was a common usage to choose the deputies of other towns as their proxies. The great object with them, as well as with the lesser barons, was to save the cost and trouble of attendance. It appears, indeed, that they formed rather an insignificant portion of the legislative body. They are not named as consenting parties in several of the statutes of James III.; and it seems that on some occasions they had not been summoned to parliament, for an act was passed in 1504 "that the commissaries and headmen of the burghs be warned when taxes or constitutions are given, to have their advice therein, as one of the three estates of the realm." This, however, is an express recogni