imprisoned members, and they were incarcerated at the king's pleasure and heavily fined. It was on this occasion that Judge Sir William Jones observed: "We are the judges of their lives and lands, therefore of their liberties." 32 The decision was most unpopular and contributed greatly to the growing opposition to Charles. The Commons never forgot this unwarranted invasion of their privileges, and made freedom of speech one of the fundamental liberties included in the Bill of Rights. But years before, in 1641, the earliest possible opportunity they had, the Commons adopted resolutions declaring the entire proceedings against their members a breach of privilege. The Civil War prevented further action. After the Restoration, the case was reopened. On November 12, 1667, the House of Commons, to remove all possibility of trouble in the future on this point, adopted a resolution declaring Strode's Act of 1521, guaranteeing freedom of speech,3 a general law declaratory of the "ancient and necessary rights and privileges of Parliament." 34 November 23, the Commons declared the specific judgments against Eliot and the other members illegal and breaches of privilege. Subsequently, Denzil Holles, now Lord Holles, brought suit upon a writ of error returnable in Parliament to annul the lower court's decision, and the Lords ordered the judgment of the King's Bench reversed.35 After the Revolution of 1688 and the consequent Bill of Rights, the privilege of freedom of speech and debate in Parliament was never again seriously questioned or denied.

Freedom of speech protects members from outside interference only. The privilege does not imply that a member may not be called to account and censured for insulting or discourteous remarks made in a Parliament house. Both houses have repeatedly exercised their right to discipline their members. Many have been brought to the bar for abusive or intemperate language, directed either against a member or against the House as a body. The usual punishment is a severe censure, although other methods of disciplining have been employed. Some have knelt in humble submission at the bar of the House in acknowledgement of their errors; others have been committed into the custody of the Serjeant-atarms, or to prison; a number have been actually expelled. Some examples will be cited later.

33 Howell, St. Tr., 306.

38 See ante, 25.

34 1 Hatsell, 86.

35 See 3 Howell, St. Tr., pp. 331 et seq.

The privilege of freedom of speech does not permit a member to circulate separate publications of the remarks he has made in Parliament. If such publications should contain matter that constitutes a libel upon the character of an individual, the member is liable to prosecution in the courts. The same reasoning has been applied to reports published by order of a Parliament house, and containing libellous material, but since the great case of Stockdale v. Hansard, an act has been passed providing for a stay of proceedings in all cases where it can be shown that the publication is by order of a house of Parliament, and is a bona fide report, printed and circulated without malice.36

The case of King v. Lord Abingdon settled the law in the case of private publication, by a member, of speeches he has delivered in Parliament. The case was heard in the Court of King's Bench in 1794. Lord Abingdon sent the manuscript of a speech delivered by him in the Lords, to a newspaper for publication at his expense. One paragraph contained a charge of improper conduct against a certain Mr. Sermon of Gray's Inn. Sermon regarded the remarks as libellous and therefore instituted suit. Lord Abingdon admitted the facts but maintained that his speech was not a libel, first because its contents were true, and secondly "as the law and custom of Parliament allows a member to state in the House any facts or matters, however they might reflect on an individual and such was dispunishable by the law of Parliament, . . . . he had a right to print what he had a right to deliver, without punishment or animadversion." 37 The court arrived at a different conclusion. Lord Kenyon admitted that the court could have no jurisdiction if the words had been spoken within Parliament and had been confined to its walls, but declared the present offence to be a private publication of a speech that constituted a libel, because made a "vehicle of slander" against an individual. The jury found for the plaintiff.

...

In 1813, Mr. Creevey, member of the House of Commons, sent a correct copy of a speech made in the House to a news-editor who had published a defective and inaccurate account of his remarks. The speech dealt with the affairs of the East India Company, and contained among other things a charge of corruption against the Inspector-General of taxes at Liverpool. The latter brought an action for libel in the Court of King's Bench. The

36 See postea, 155.

37 1 Esp. N. P. Cases, 228.

defendant claimed privilege of Parliament, and the right to correct an error in the press by submitting a correct copy of his address. for publication. Nevertheless, the jury found him guilty. An application for a new trial was denied by Lord Ellenborough on the ground that no member has a right "to address (his speeches) as an oratio ad populum in order to explain his conduct to his constituents," and that the order and procedure of Parliament does not provide that members should print their own speeches.38

Privilege does extend to reports and proceedings of Parliament printed by order of either house for the use of members only. This was the ruling in Rex v. Wright, 1799. Wright, a bookseller, had printed and published a report of the Committee of Secrecy of the House of Commons, by order of that House, and solely for the use of its members. J. Horne Tooke, whose name was mentioned in one of the paragraphs of the report, took offence at its content and sued Wright for libel. The case was dismissed on the ground that it involved "a proceeding of one branch of the legislature" and therefore could not be inquired into.39 But where such publications are scattered broadcast, in the world beyond the walls of the Parliament houses, a very different situation arises. If privilege should apply in such cases, the proceedings of Parliament might become "vehicles of slander," and the individual's common law remedy would be seriously impaired. The final solution of this troublesome matter-the conflict between the law of privilege as applied to privileged publications and the ordinary law of libeldid not come until well along in the nineteenth century.

At the present time, the privilege of freedom of speech, as defined and carefully limited by statutes and court decisions, is established beyond question, and is secure from all interference from Crown, courts, or any other source.

C. FREEDOM FROM ARREST AND MOLESTATION

Of equal, if not of greater importance than freedom of speech is the privilege that guarantees to members freedom from arrest and general molestation, whether the interference come from Crown officers, private citizens, or the processes and summonses issued by

38 1 Maule & Selwyn, Reports, 273-283. Justice Le Blanc held that the court had no right to inquire into speeches made in the House, but that such was not the case with a publication, which comes under the common law jurisdiction. Note the distinction between the two bodies of law and the two jurisdictions.

39 8 Durnf. & East, 293-299.

the ordinary courts. This privilege, in the early stages of its development, was not limited to members of Parliament; it was extended to their servants and estates as well.40

The first case of great importance involves the application of the privilege of freedom from molestation to a member's servant. In the fifth year of Henry IV's reign, the Commons petitioned the king for relief in the case of Richard Cheddre, servant of one of the members. Cheddre had been assaulted during the time of Parliament. That the Commons were conscious of the vital principle involved is shown by the severe punishment they wished to inflict upon the assailant, to prevent the recurrence of such incidents in the future. In the view of the House, the murder of any one coming to Parliament under the king's protection should be treason; maiming or disfiguring a Parliament man should be punished by the loss of a hand, and in their petition to the Crown, the Commons inserted a special prayer requesting the king to refrain henceforth from the exercise of his pardoning power in similar cases unless all parties concerned should first give their assent. Evidently the Commons had learned to distrust royal promises. The assailant was imprisoned, fined, and held liable for damages, and it was resolved that the same punishment should be applied in similar cases in the future. A special act describing this procedure was passed and incorporated in the statute book.41 Some years later, on the occasion of an assault on one of the knights of Oxford, the Commons referred to the Cheddre incident, and secured another confirmation of their privilege. It was stated that in the event of “any assault or attack made upon any lord Spiritual or Temporal, Knight of the County, Citizen or Burgess, come to Parliament or to the Council of the King at his command" the guilty party should be summoned before the King's Bench, and on conviction, should be held liable in double damages to the injured party, plus a fine and ransom to the king.42 The wording of the petition in both cases indicates that the Commons regarded this privilege as an ancient part of the law and custom of Parliament, and not created

40 I shall disregard those faint traces of privilege some have claimed to find in the Laws of Ethelbert, Edward the Confessor, and others of the Saxon kings, wherein the king's special peace and protection was guaranteed to those summoned to the witenagemots and synods. The evidence is not conclusive, and it seems better to confine the discussion to records and times where the footing is more secure, and when Parliament as such, took on something more nearly like its present form and composition. But see the discussion in May's Parliamentary Practice (11th Ed) p. 103.

41 5 Henry IV, Cap. VI.

42 4 Rot. Parl., 453. Also 1 Hatsell, 24.

by the statutes mentioned. In Atwyll's case 43,-17 Edward IV-the privilege is said to exist "whereof tyme that mannys mynde is not the contrarie.”

Thorpe's famous case in 1453 is not easy to analyze. Thomas Thorpe, Speaker of the House of Commons, had been arrested at the suit of the Duke of York, under an order from the Court of Exchequer, for certain acts of trespass committed since Parliament was in session. The Speaker was found guilty and sentenced to the Fleet prison. Thereupon, the Commons petitioned the king for his release, on the ground that their most ancient liberties and privileges had been violated and that parliamentary business could not be properly dispatched with the Speaker absent." The Duke of York argued that Thorpe should be kept in confinement, since his release on a plea of privilege would result in a failure of justice. The Lords called upon the judges to settle this difficult question. In their reply, they upheld the theory that the High Court of Parliament, the highest court in the realm, and its peculiar lex parlia menti, were supreme in cases of this nature, and that privilege could be denied only in cases of treason, felony, or breach of the peace. The decision therefore entitled Thorpe to his release, since he was being held in a civil suit only. Nevertheless, he remained in prison, apparently upon the order of the Lords. The Commons were notified to that effect by the Bishop of Ely, who represented the king, and were instructed to elect another Speaker. They obeyed without further remonstrance.45 A clear analysis of the case is difficult. It cannot be ascertained with absolute certainty just what steps were actually taken, and in what sequence, but one thing is certain, Thorpe's case was never much stressed by the later champions of privilege. Particularly the Commons were anxious to have some of its features forgotten, for in Thorpe's case, they had applied to the Lords, as well as to the king, for the protection of their privilege, instead of relying on their own powers to enforce their claims. Furthermore, notwithstanding the ruling of the judges to the contrary, the Lords had kept Thorpe in prison, and the Commons had acquiesced in the decision. In after years, the Commons tried to ignore this precedent, and certainly did not follow this course of procedure in subsequent cases. In 1620, Sir Nicholas Rich termed it "a case begotten by the iniquity of the time, when the Duke of York

43 See May's discussion, Parliamentary Practice (11th Ed.) p. 104 and 6 Rot. Parl., 191. 445 Rot. Parl., 239.

45 1 Hatsell, 28 et seq.