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Publication of parliamentary papers.

and partly because the court would not regard a proceeding Chapter of either house of Parliament as a libel.

By the 3 & 4 Vict. c. 9, passed in consequence of the decision of the Court of Queen's Bench in the case of Stockdale v. Hansard (see p. 141), it was enacted that proceedings, criminal or civil, against persons for the publication of papers printed by order of either house of Parliament, shall be immediately stayed, on the production of a certificate, verified by affidavit, to the effect that such publication is by order of either house of Parliament. Proceedings are also to be stayed, if commenced on account of the publication of a copy of a parliamentary paper, upon the verification of the correctness of such copy; and in proceedings commenced for printing any extract from, or abstract of, a parliamentary report or paper, the defendant may give the report in evidence under the general issue, and prove that his own extract or abstract was published bonâ fule and without malice; and if such shall be the opinion of the jury, a verdict of not guilty will be entered.1

1 The action of Harlow v. Hansard was stayed 14th July, 1845, by Mr. Justice Wightman in chambers, on the production of the Speaker's certificate. In the case of Houghton and others v. Plimsoll, tried at Liverpool, 1st April, 1874, Baron Amphlett directed the jury that the

report of a Royal Commission, pre-
sented to Parliament in a printed
form, came within the provisions
of the Act, "since it was a report
which had been adopted by Parlia-
ment, and of which a distribution
of copies had been ordered by
Parliament."

IV.

Chapter V.

Table of Contents, see Introduction.

CHAPTER V.

FREEDOM FROM ARREST OR MOLESTATION.

of the

THE privilege of freedom from arrest or molestation is of Antiquity
great antiquity, and dates, probably, from the first existence privilege.
of parliaments or national councils in England. By some
writers its recognition by the law has been traced so far
back as the time of Ethelbert, at the end of the sixth
century, in whose laws it is said, "If the king call his people-
to him (ie. in the witena-gemót), and any one does an
injury to one of them, let him pay a fine." Blackstone-
has shown that it existed in the reign of Edward the
Confessor, in whose laws we find this precept, "Ad synodos.
venientibus, sive summoniti sint, sive per se quid agendum
habuerint, sit summa pax;" and so, too, in the old Gothic
constitutions, "Extenditur hæc pax et securitas ad
quatuordecim dies, convocato regni senatu." 2 In later
times there are various precedents explanatory of the nature
and extent of this privilege, and of the mode in which it
was sustained. From these it will be seen that not only are
the persons of members of both Houses of Parliament free
from arrest on mesne process or in execution, but that.
formerly the same immunity was enjoyed in regard to their
servants and their property. The privilege was strained still
further, and even claimed to protect members and their
servants from all civil actions or suits, during the time over
which privilege was supposed to extend. The privilege of
freedom from arrest has also been construed to discharge.
members and their servants from all liability to answer
subpoenas in other courts and to serve on juries, and in some
cases to relieve them from commitments by courts of
justice.

1 Wilkins, Leges Anglo-Sax. p. 2; 2 Hallam, Middle Ages, 231; 2 Kemble, Saxons in England, 33.

21 Comm. 165; Stiernh. de Jure Goth.

Privileges

enume

rated.

These various immunities have undergone considerable Chapter V. changes and restrictions; and being now defined, for the most part, with tolerable certainty, they will be best understood by considering them in the following order: 1. Privilege of members and their servants from arrest and distress, and the mode of enforcing it. 2. Their protection from being impleaded in civil actions. 3. Their liability to be summoned by subpoena, or to serve on juries. 4. Their privilege in regard to commitments by legal tribunals. 5. Privilege of witnesses and others in attendance on Parliament. It may, however, be stated at once, that although many cases that will be given apply equally to members and to their servants, according to the privilege existing in those times, the latter have at present no privilege whatever (see p. 108). These cases, though at variance with modern usage, could not be omitted consistently with a complete view of the privilege of freedom from arrest and molestation. So far back as the 19th Edward I., in answer to a petiand distress tion of the Master of the Temple for leave to distrain for the of goods. rent of a house held of him by the Bishop of St. David's,

Freedom

from arrest

case.

the king said, "It does not seem fit that the king should
grant that they who are of his council should be distrained
intime of Parliament." The privilege was also acknowledged
very distinctly by the Crown in the case of the Prior of
Malton, in the 9th Edward II.1

The freedom, both of the Lords and Commons, and their servants, from all assaults or molestation, when coming to Parliament, remaining there, and returning thence, was Chedder's distinctly recognized in the case of Richard Chedder, a member, by Statute 5 Hen. IV. c. 6, and again by another Statute, 11 Hen. VI. c. 11. This privilege, however, was not created by statute. In the 17th Edward IV., the Atwyll's Commons affirmed, in Atwyll's case, that the privilege, that they should not be impleaded in any action personal," had existed "whereof tyme that mannys mynde is not the contrarie; "2 thus placing it on the ground of

case.

66

11 Rot. Parl. 61; 4 Inst. 24 E.; 26 Rot. Parl. 191. 1 Hatsell, 12.

Chapter V. prescription, and not on the authority of statutes then

in force.

case.

members

The only exception to the recognition of this privilege Thorpe's was in the extraordinary case of Thorpe, the Speaker of the Commons, who was imprisoned in 1452, under execution from the Court of Exchequer, at the suit of the Duke of York; and who was retained in prison by the order of the House of Lords, although the judges advised them that Thorpe was entitled to his release (see p. 132). The case, however, has been regarded as irregular and "begotten by the iniquity of the times."2 Down to 1543, although the privilege had Release of been recognized by statute, by declaration of both houses, from by the frequent assent of the king, and by the opinions of custody. the judges, the Commons did not deliver their members out of custody by their own authority: but when the members were in execution, in order to save the rights of the plaintiff, they obtained special statutes to authorize the lord chancellor to issue writs for their release; and when confined on mesne process only, they were delivered by a writ of privilege issued by the lord chancellor.3

At length the Commons, for the first time, vindicated the Case of George privilege of Parliament, and acted independently of any Ferrers. other power. In 1543, George Ferrers, a member, was arrested in London, by a process out of the King's Bench, at the suit of one White, as surety for the debt of another. The house, on hearing of his arrest, ordered the Serjeant to go to the Compter and demand his delivery. The Serjeant was resisted by the city officers, who were protected by the sheriffs; and he was obliged to return without the prisoner. The Commons laid their case before the Lords, "who, judging the contempt to be very great, referred the punishment thereof to the order of the Commons' house." They ordered

15 Rot. Parl. 239. See also Henry IV.'s reply to the Commons' petition of the 5th year of his reign, 3 ib. 541.

21 C. J. 546.

'Larke's case, "Le Roi, par advis des seigneurs espirituelx et tempo

relx, et a les especiales requestes des
communes," 4 Rot. Parl. 357; also
5 ib. 374; Atwyll's case, 6 ib. 191;
Parr's case, 5 ib. 111; Hyde's case,
6 ib. 160; Thorpe's case, 5 ib. 239;
Sadcliff's case, 1 Hatsell, 51.

Cases in the Lords.

Present position of freedom

from

arrest.

the Serjeant to repair to the sheriffs, and to require the chapter V.
delivery of Ferrers, without any writ or warrant. The lord
chancellor had offered them a writ of privilege, but they
refused it, "being of a clear opinion that all commandments
and other acts proceeding from the neather house were to be
done and executed by their Serjeant without writ, only by
show of his mace, which was his warrant." The sheriffs, in
the mean time, had surrendered the prisoner: but the Ser-
jeant, by order of the house, required their attendance at
the bar, together with the clerks of the Compter, and
White, the plaintiff; and they were all committed for their
contempt.1

The practice of releasing members by a writ of privilege
was still continued, notwithstanding the course pursued in
the case of Ferrers: but henceforward no such writ was
suffered to be obtained without a warrant previously signed
by the Speaker.

The principal cases in the Lords, up to this period, show an uncertainty in their practice similar to that of the Commons; privileged persons being sometimes released immediately, and sometimes by writs of privilege. On the 1st December, 1585, they ordered to be enlarged and set at liberty James Diggs, servant to the Archbishop of Canterbury, "by virtue of the privilege of this court;" and again, in the same year, a servant of Lord Leicester; and in 1597, the servants of Lord Chandois and the Archbishop of Canterbury. In the two last cases the officers who had arrested the prisoners were committed by the house.2

The modifications of the ancient privilege which have been effected by statute, and the modern practice of Parliament, in protecting members from arrest, must now be considered. In 1603, the case of Sir Thomas Shirley

1 See also the king's statement and the lord chief justice's declaration confirming the Commons' privileges, 1 Hollingshed, 824; 1 Hatsell, 57. See also Smalley's case, 27th Feb. 1575, 1 C. J. 108; see also the cases of Mr. Fitzherbert and Mr. Neale, D'Ewes, 482. 514. 518. 520;

1 Hatsell, 107.

22 L. J. 66; ib. 93; ib. 201. 205; see also the cases of William Hogan, released by the order of the house; and of Vaughan, released by a writ of privilege, 2 L. J. 230. 238. 241; D'Ewes, 603. 607.

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