this right.1 And in the case of Flower, who was in 1799 committed by the House of Lords, the court acted in like manner. It has been said that, as the law of Parliament was only known to Parliament men, the public could not justly be answerable for any breach of it; but the same may be said of courts of law, as the court itself pointed out.3

Instances of libellous comments being breaches of privilege. The instances in which the House has exercised the power of committing those who libel it have varied with the circumstances of the time, and no certain result has followed when a jury intervened. When the Oracle published, that "party rancour had deprived the king and country of the great abilities of Lord Melville, that he had fallen a victim to confidence misplaced and to prejudice misjudged, and had been condemned without a trial;" this was held by Parliament to be libellous. Owen, on the other hand, was charged with vilifying the House of Commons by calling their conduct as to Alexander Murray "violent, oppressive, and wanton," and comparing the House to a Turkish Divan and to the Inquisition; but the defendant, being tried by a jury, was found not guilty.5 The Morning Chronicle said, in 1798, that" some lords had determined to vindicate their importance by regulating the dresses of our opera dancers, and that one of the Roman Emperors recommended his senate, when they were good for nothing else, to discuss what was the best sauce for a turbot." The House resolved, that this was a scandalous libel, and ordered the proprietor and editor to be committed for three months unless they paid each a fine of 5016 An editor wrote of a bishop, in 1799, that "for some time the bishop was an opposer of Mr. Pitt, but suddenly finding that was not the way to preferment, he suddenly became an alarmist, then applied to Mr. Pitt for further preferment, and had since supported his measures. But that the minister

3 Per

44 Parl. Deb.

1 Re Crosby, 3 Wils. 188. 2 R. v Flower, 8 T. R. 314. De Grey, C. J., 3 Wils. 200, and see ante, p. 108. 382. 5 R. v Owen, 18 St. Tr. 1203.

6 A.D. 1798, 33 Parl. Hist. 1312; 27 St. Tr. 1070. Again, in 1804, Cobbett was found by a jury guilty of a libel for, amongst other things, calling Lord Hardwicke a sheep farmer, and Lord Redesdale a stout built special pleader.-R. v Cobbett, 29 St. Tr. 54. See ante, p. 94.

had not yet thought the right reverend time-server and apostate worth paying." The House held this was a scandalous libel on the Bishop of Llandaff, and imprisoned the libeller for six months and fined him 100.1 In 1810 Sir F. Burdett delivered a speech in the House of Commons, in which he denied its power to imprison strangers for contempt in this way, and urged that the only remedy was an action or indictment. And he published an enlarged edition of his speech for the benefit of his constituents, which was in its turn complained of as a contempt, and he was committed.2 In later times it was sometimes said of this case, that the House was not well advised as to the right mode of acting, and was involved in difficulties, owing to an action brought by Sir F. Burdett against officers of the House on the occasion. In 1819 Mr. Hobhouse was on similar grounds committed to Newgate, while D. O'Connell was at a later date reprimanded in his place by the Speaker.5 The publisher of the Times in 1831 was committed for calling Lord Limerick "a thing with human pretensions, who treated the Irish poor with brutal ridicule or impious scorn." 6 And a libel on the Lord Chancellor, in the course

1 Re Flower, 27 St. Tr. 986.

2 65 Com. J. 252. SIR S. ROMILLY said: "Any man has a right to discuss every great constitutional question, whether of original power or of constituted authority. He might show his folly in arguing a point in which no other man would agree with him, but still he had a right to do so. There might be inflammatory language in the paper in question, but at the same time it was reasoned with great ability, and all the great authorities and precedents on the subject were given and argued upon with much learning. This was a grave argument, and God forbid that any man should be precluded from discussing such a subject."-16 Parl. Deb. 282. The House, however (by a majority of 271 to 80), held that the mode and tenor of Sir F. Burdett's speech was to advocate resistance by force, to impute corrupt practices to most of the members-that the House had encroached on the liberties of the people and enormously abused its powers, and set itself up above both king and people. And Sir F. Burdett was committed to the Tower, though influential members thought a reprimand sufficient. Sir F. Burdett afterwards brought an action against the Speaker.-Burdett Abbott, 14 East, 1.

3 Rolfe, S. G. 51 Parl. Deb. (3d) 1138.

593 Com. J. 207, 312, 316.

4 75 Com. J. 57.

63 Parl. Deb. (3) 1751. In 1832 a solicitor having published a letter reflecting on members for their vote in a committee on a private bill, was summoned to the bar and admonished by the

of his duties in deciding appeals from courts of law, is treated as breach of privilege, as was the case when the Morning Post, in 1854, wrote a libellous article against Lord Brougham.1

Other modes of punishing a breach of privilege.But while Parliament has thus the means of punishing a breach of privilege by an order of committal, sometimes to the custody of the Black Rod, and sometimes to Newgate, or the Tower, it does not always exercise this right, and is content to devolve the adjudication and the punishment on the ordinary courts of law. Either House of Parliament, instead of punishing the party itself, may pray the crown to direct the Attorney-General to prosecute by indictment or criminal information. When this is done, however, so great is the power of juries, that they have the uncontrollable right of acquitting the defendant, and sometimes in sympathy take this course, as was done in the case of Bushell the Quaker, the Seven Bishops, Owen, and Reeves, Woodfall, Stockdale, Dean of St. Asaph, and other cases.2 The House had often on such occasions been urged not to allow itself to be trampled on and go begging to courts of law for protection, seeing that its privileges are part of the Constitution; but to commit the parties by its own authority.3 Burke said, that after Stockdale's case he never would again consent to the House of Commons ordering the Attorney-General to prosecute for libel. The House should not delegate that power to any court whatever. In Reeves' case, Fox strongly advised the House

Speaker.-87 Com. J. 278, 294. While an editor was committed to custody for imputing corrupt motives to a chairınan of a committee on a private bill.-113 Com. J. 189, 192, 203.

1 66 Lords J. 704, 737, 743, 764.

2 R. v Owen, 18 St. Tr. 1203; R. v Stockdale, 22 St. Tr. 291; R. v Reeves, 26 St. Tr. 530. In such cases it has been urged by a Peer, that whenever a libel is published on a peer and can be tried equally well in the inferior courts this course ought to be taken, because the process of attachment for contempt involved peculiar hardship, and was a violation of the most general maxims of English law. The party was not tried by his peers, the guilt of the libel was previously declared, witnesses were examined in his absence, the court was a close court, and, above all, the House was accuser, judge, jury, and the injured party. But the House disregarded these remonstrances.-L. Holland, re Flower, 27 St. Tr. 1015. 3 16 Parl. Deb. 491. 4 30 Parl. Hist. 986.

not to order a prosecution, but to take the punishment into its own hands; but the House ordered a prosecution, and Reeves was acquitted.1

Publishing of Parliamentary debates at first treated as breach of privilege. The freedom of speech allowable in the interior of Parliament, how far each member can speak his mind on any subject, relevant or irrelevant, with entire immunity either from his fellow members on the one hand or the people and the Crown outside on the other hand, belongs properly to that division of the law entitled "the Legislature." What can be done to a member for any abuse of this freedom of speech, and what restrictions if any can be put upon him, must therefore be noticed in another place, and only a small part of it belongs to that chapter of the law of libel, which treats of excuses arising from privilege of Parliament. But at present it is necessary to see how far freedom of speech and comment is allowed to those of the public outside, who choose to look into this interior. Such a right of comment is a vital part of the liberty of the subject, and no people can be deemed free, who cannot discuss anything and everything that is done by their representatives as well as by their hereditary legislators in the great council room, provided such discussion is conducted with average decorum. However conspicuously the parliament is now identified with the fortunes of the press, it for a long time looked askance on this publicity, and even affected open hostility. While each House admitted strangers as a matter of courtesy, it was averse to sanctioning any stranger committing to writing notes of its proceedings and publishing these for the information of the public. There was thus for a long time an imperfect appreciation of the reciprocal relations existing between Parliament and the public.

It has long been a general resolution of the House of

1 32 Parl. Hist. 650, 681.

2 "The publicity given in modern times to what passes in Parliament is essential to the maintenance of the relations subsisting between the Government, the legislature, and the country at large. Every member of the educated portion of the community, from the highest to the lowest, looks with eager interest to the debates of either House, and considers it a part of the duty of the public journals to furnish an account of what passes there."-Per Cockburn, C. J., Wason v Walter, L. R. 4 Q. B. 90.

Commons, that whoever publishes or writes anything reflecting on a member and misrepresents his proceedings in Parliament commits a breach of privilege. And it is the same in reference to any report of the impeachments or prosecutions in which the House is engaged. So late as Lord Melville's impeachment, the House directed one person only to publish a report.3 The policy which led both Houses of Parliament to make this order against publication of their debates has been vindicated on the ground, that the Crown used to attempt to punish members for free speaking, or sought to prevent them altogether speaking by an immediate dissolution. And it is said the first committal of a printer of debates for a distinct contempt on that ground was in 1694.5 And even so late as 1728 the House of Commons laid down the wide proposition by way of resolution, "That it is an indignity to and a breach of privilege for any person to presume to give in a written or printed newspaper any account of the debates or other proceedings of the House or of any committee thereof; and on discovery of the authors, printers, or publishers of any such written or printed newspaper, this House will proceed against the offenders with the utmost severity." 6

In 1738 a solemn debate began by a suggestion of the Speaker, that he saw a practice prevailing, which a little reflected on the dignity of the House; he meant the inserting an account of their proceedings in the printed newspapers, by which means these proceedings were liable to very great misrepresentation. One speaker urged, that, if the speeches of the House were every day printed," they should be looked upon as the most contemptible assembly on the

1 1642, H. C. 2 Com. J. 220; 27 Feb. 1698, H. L.; A.D. 1699, 12 Com. J. 661; A.D. 1701, 13 Com. J. 767.

2 45 Com. J. 508.

36 Camp. L. Chs. 575. 4 Lord Campbell, H. L. 149 Parl. Deb. (3) 953. "The secrecy of Parliamentary debates-a secrecy which would now be thought a grievance more intolerable than ship money or the Star Chamber, was at the time of the Revolution inseparably associated even in the most honest and intelligent minds with constitutional freedom. Those precautions which had been originally devised for the purpose of protecting patriots against the displeasure of the court, now served only to protect sycophants against the displeasure of the nation."-Macaulay, Hist. c. 19. 7 10 Parl. H. 801.

5 A.D. 27 Dec. 1694. 6 21 Com. J. 238.