confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, there is little doubt but that they would be discharged by the courts upon a writ of habeas corpus. Lord Denman, in his judgment in the case of Stockdale v. Hansard, said, "However flagrant the contempt, the House of Commons can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. Though the party should deserve the severest penalties, yet, his offence being committed the day before the prorogation, if the house ordered his imprisonment but for a week, every court in Westminster Hall, and every judge of all the courts, would be bound to discharge him by habeas corpus." It was formerly the practice to make prisoners receive the judgment of the house kneeling at the bar, but on the 16th March 1772, it was resolved by the commons, nem. con., "That when any person shall from henceforth be brought to the bar of this house to receive any judgment of this house, or to be discharged from the custody of the serjeant-at-arms attending this house, or from any imprisonment inflicted by order of the house, such person shall receive such judgment, or the order of the house for his discharge, standing at the bar, unless it shall be otherwise directed, in the order of the house made for that purpose;" and ordered to be made a standing order.' 1 1 Judgment in Stockdale v. Hansard, p. 142. 2 33 Com. J. 594. CHAPTER IV. Necessity of freedom of speech. Confirmed by law of Parlia ment. PRIVILEGE OF FREEDOM OF SPEECH CONFIRMED BY THE FREEDOM of speech is a privilege essential to every free council or legislature. It is so necessary for the making of laws, that if it had never been expressly confirmed, it must still have been acknowledged as inseparable from Parliament, and inherent in its constitution. Its principle was well stated by the commons, at a conference on the 11th of December, 1667: "No man can doubt," they said, "but whatever is once enacted is lawful; but nothing can come into an Act of Parliament, but it must be first affirmed or propounded by somebody; so that if the Act can wrong nobody, no more can the first propounding. The members must be as free as the houses: an Act of Parliament cannot disturb the state; therefore the debate that tends to it cannot; for it must be propounded and debated before it can be enacted." 1 But this important privilege has not been left to depend upon abstract principles, nor even upon the ancient law and custom of Parliament, but has been recognised and confirmed as part of the law of the land. According to Elsynge, the "commons did oftentimes, under Edward 3, discuss and debate amongst themselves many things concerning the king's prerogative, and agreed upon petitions for laws to be made directly against his prerogative, as may appear by divers of the said petitions; yet they were never interrupted in their consultations, nor received check for the same, as may appear also by the answers to the said petitions.”2 112 Lords' J. 166. 1 Elsynge, 177. In the 20th of Richard the 2d, however, a case Haxey's case. occurred in which this ancient privilege was first violated, but afterwards confirmed. Haxey, a member of the commons, having displeased the king, by offering a bill for reducing the excessive charge of the royal household, was condemned in Parliament as a traitor. But on the accession of Henry 4, Haxey exhibited a petition to the king in Parliament, to reverse that judgment, as being “against the law and custom which had been before in Parliament;" and the judgment was reversed and annulled accordingly by the king, with the advice and assent of all the lords spiritual and temporal.' This was unquestionably an acknowledgment of the privilege by the highest judicial authority, the king and the House of Lords; and in the same year the commons took up the case of Haxey, and in a petition to the king affirmed "that he had been condemned against the law and course of Parliament, and in annihilation of the customs of the commons ;" and prayed that the judgment might be reversed, "as well for the furtherance of justice as for the salvation of the liberties of the commons."2 To this the king also assented, with the advice and assent of the lords spiritual and temporal; and thus the whole legislature agreed that the judgment against Haxey, in derogation of the privileges of Parliament, "should be annulled and held to be of no force or effect." Again, in the 4th Henry 8, 1512, Mr. Strode, a member of the House of Commons, was prosecuted in the Stannary Court, for having proposed certain bills to regulate the tinners in Cornwall, and was fined and imprisoned in consequence. Upon which an Act was passed,3 which, after stating that Strode had agreed with others of the commons in putting forth bills "the which here in this 11 Hen. 4; 3 Rot. Parl. 430. 2" Si bien en accomplissement de droit, come pur salvation des libertés de lez ditz communes.”—3 Rot. Parl. 434. 34 Hen. 8, c. 8. Strode's case. Petition of the commons. High Court of Parliament, should and ought to be communed and treated of," declared the proceedings of the Stannary Court to be void, and further enacted, "That all suits, condemnations, executions, fines, amerciaments, punishments, &c. put or had, or hereafter to be put or had, upon the said Richard (Strode), and to every other of the person or persons that now be of the present Parliament, or that of any Parliament thereafter shall be, for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament to be communed and treated of, be utterly void and of none effect." As the proceedings that had already taken place against Strode were declared to be void, it is evident that freedom of speech was then admitted to be a privilege of Parliament, and was not, at that time, first enacted. The words of the statute also leave no doubt that it was intended to have a general operation in future, and to protect all members, of either house, from any question for their speeches or votes in Parliament. Thirty years afterwards the petition of the commons to the king, at the commencement of the Parliament, appears for the first time to have included this privilege amongst those prayed for of the king. The first occasion on which such a petition is recorded, was in the 33d Henry 6, (1541), when it was made by Thomas Moyle, speaker.1 But although the petitions for freedom of speech were not made in that manner, there is a remarkable petition of the commons, and answer of the king, in the 2d Henry 4, relating to this privilege. The commons prayed the king not to take notice of any reports that might be made to him of their proceedings; to which the king replied, that it was his wish that the commons should deliberate and treat of all matters amongst themselves, in order to bring them to the best conclusion, according to their wisdom, for the welfare and honour of himself and all his realm; and that he would hear no person, nor give him 1 Elsynge, 176. any credit, before such matters were brought before the king, by the advice and assent of all the commons, according to the purport of their petition.1 But, however essential to Parliament, and however con- Violations of the privilege. firmed by statute and recognised by kings, it is needless to recount how frequently this privilege was formerly violated by the power of the Crown. The Act of the 4th of Henry 8th extended no further than to protect members from being questioned, in other courts, for their proceedings in Parliament; but its principle should equally have saved them from the displeasure of the Crown. The cases of Mr. Strickland, in 1571,2 of Mr. Cope, Mr. Wentworth, and others, in 1586,3 and of Sir Edwyn Sandys, in 1621,* will serve to remind the reader, how imperfectly members were once protected against the unconstitutional exercise of prerogative. The last occasion on which the privilege of freedom of speech was directly impeached, was in the celebrated case of Sir John Elliot, Denzil Hollis, and Benjamin Valentine, against whom a judgment was obtained in the King's Bench, in the 5th Charles 1, for their conduct in Parliament. On the 8th July, 1641, the House of Commons declared all the proceedings in the King's Bench to be against the law and privilege of Parliament.5 The prosecution of those members was, indeed, one of the illegal acts which hastened the fate of Charles the First; and, on the restoration of his son to the throne, it was not forgotten by the Parliament. The judgment had been given against the privilege of Parliament, upon the false assumption that the Act of the 4th Henry 8 had been simply a private statute, for the relief of Strode, and had no general operation; and in order to condemn this construction of the plain words of the statute, the commons resolved, on the 12th November 1667, "That 2 D'Ewes, 166. 4 Parl. Hist. 153. 2 Com. J. 203. 13 Rot. Parl. 456. 3 D'Ewes, 410. 41 Hats. Prec. 136, 137. 5 |