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House of

be a court

of the prorogation, certain prisoners were committed for a Chapter
fortnight." If no time were mentioned, and the commitment.
were general, it has been said that the prisoners could not
be discharged on habeas corpus even after a prorogation : 2
but in the case of Lord Shaftesbury, a doubt was expressed
by one of the judges whether the imprisonment, which was
for an uncertain time, would be concluded by the session;
and another said, that if the session had been determined,

the prisoner ought to have been discharged. 3
Whether Whether the House of Commons be, in law, a court of
Commons record, it would be difficult to determine; for this claim,
of record. once firmly maintained, has latterly been virtually aban-

doned, although never distinctly renounced. In Fitzherbert's
case, in 1592, the house resolved, “That this house being a
court of record, would take no notice of any matter of fact
at all in the said case, but only of matter of record ;” and
the record of Fitzherbert's execution was accordingly sent
to the house by the lord keeper. The apology of the
Commons, 1604, contains these words: “We avouch also
that our house is a court of record, and ever so esteemed.”
On the other hand, in Jones v. Randall,4 Lord Mansfield
said the House of Commons was not a court of record; yet
acting as a court of record, the Commons formerly imposed

fines and imprisoned offenders for a time certain.5
Fines im- In Floyde's case, in 1621, the Commons clearly exceeded
posed by
the Com- their jurisdiction. That person had spoken offensive words

concerning the daughter of James I. and her husband, the
elector palatine. In this he may have been guilty of a libel,
but certainly of no breach of parliamentary privilege. Yet
the Commons took cognizance of the offence, and sentenced
Floyde to pay a fine of 10001., to stand twice in the pillory,

mons.

420.

1 82 L. J. 478.

? Lord Denman's judgment in Stockdale v. Hansard, Proceedings printed by the Commons, 1839 (283), p. 147.

36 Howell, St. Tr. 1296; 1 Mod. Rep. 144; see report by the Serjeant of a prisoner's discharge, “ of course” by a prorogation, 26 L. J.

"D'Ewes, 502; 1 Hatsell, 233; see also Sir E. Coke's statement, 1 C. J. 604; 1 Cowp. 17.

5 Smalley's case, 1575; Hall's case, 1580; 1 C. J. 112. 113. 125. 126; also 7 ib. 531. 591; 9 ib. 543. 687. 737 ; 10 ib. 84 ; 12 ib. 255, 256 ; D'Ewes, J. 366.

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Chaptar and to ride backwards on a horse, with the horse's tail in

_ his hand. Upon this judgment being given, first the king

and then the Lords interfered, because the offence was
beyond the jurisdiction of the Commons. The Commons
perceived their error, and left the offender to be dealt with
by the Lords. But if the Commons exceeded their juris-
diction in this case, the Lords equally disregarded the limits
of their own, and proceeded to still more disgraceful severi-
ties. Floyde was sentenced that he should be incapable of
bearing arms as a gentleman; that he should ride twice
to the pillory with his face to the horse's tail, holding
the tail in his hand; that he should be branded with the
letter K on his forehead, be whipped at the cart's tail,
be fined 50001. to the king, and be imprisoned in Newgate
for life.?

The last case of a fine by the Commons occurred in 1666,
when a fine of 10001. was imposed upon Thomas White, who
had absconded after he had been ordered into the custody
of the Serjeant-at-arms.
The modern practice of the Commons is to commit per- Present

modes of sons to the custody of the Serjeant-at-arms, to Newgate, or punishto the Tower, during the pleasure of the house; and to keep offenders there until they present petitions praying for their release, and expressing contrition for their offences ; 4 or until, upon motion made in the house, it is resolved that they shall be discharged. It is then usual for the parties to be brought to the bar, by the Serjeant with his mace, and, after a reprimand from the Speaker, to be discharged on payment of their fees (see p. 94). But occasionally their attendance at the bar, and the reprimand, have

ment.

11 C. J. 609; 1 Hans. Parl. Hist. 1250.

? 1 C. J. 619; 3 L. J. 134; “Pro. ceedings and Debates of the Com. mons,” 1620, 1621 (Oxford); and 1 Hans. Parl. Hist. 1259; see also the treatment of Nayler by the Protec. torate Parliament, 7 C. J. 465; Palgrave's Oliver Cromwell, 187.

• 8 C. J. 690.
• It has been customary to order

such petitions to be printed and con-
sidered on a future day. 97 C. J.
180. 209; 106 ib. 151; 113 ib. 196 ;
134 ib. 381 ; 150 H. D. 3 s 1198.

S 95 C. J. 291. 337 ; 97 ib. 224.

« On the 9th May, 1604, it was "delivered for a rule, that no delinquent is to be brought in, but by the Serjeant with his mace," 1 ib. 204; 82 ib. 399; 87 ib. 365; 97 ib. 240; 106 ib. 289.

III.

nition.

been dispensed with. A member, if in custody of the Chapter Serjeant, is reprimanded at the bar; but, otherwise, in

his place.
Reprimand It is not customary to order a person to be reprimanded
and admo-

unless he be in custody, though there are some examples
of a different practice ; 3 and orders have been made that
the person incriminated do attend to receive a reprimand.
When the offence has not been so grave as to cause the
commitment of the offender, he is generally directed to be
“admonished;" the Serjeant, bearing the mace, standing
by whilst the admonition is pronounced. The Speaker's Scè forma!

motions, reprimand or admonition is always ordered to be entered p. 215; in the journals. Where the offence has been slight, or the apology is accepted as satisfactory, even an admonition contis in.

*** journal, see has been dispensed with; and the house has resolved to p. 191, n. 3. proceed no further in the matter (such resolution being communicated to the person concerned, by the Speaker); 6 or that the person be excused or discharged from further

attendance.?
Payment of Payment of fees was formerly remitted, by order, under
fees.

special circumstances : 8 but, according to present usage,
no order for the payment of fees is made, unless called for

by the nature of the offence. Imprison.

No period of imprisonment is named by the Commons, ment by

and the prisoners committed by them, if not sooner dis-
the Com-
mons con- charged by the house, are immediately released from their
cluded by

confinement on a prorogation, whether they have paid the
fees or not. If they were held longer in custody, they

prorogation,

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Chapter would be discharged by the courts, upon a writ of habeas

corpus.
It was formerly the practice to make prisoners receive Prisoners

wth, kneeling at
the judgment of the house, kneeling at the bar : in both
houses, however, this practice has long since been dis-
continued. The discontinuance of this practice arose from
the refusal of Mr. Murray to kneel, when brought up to
the bar of the House of Commons, on the 4th February,
1750. For this refusal he was declared “guilty of a high
and most dangerous contempt of the authority and privi-
lege of this house;" was committed close prisoner to
Newgate, and not allowed the use of pen, ink, and paper.3
It appears that there had previously been only one other
instance of such a refusal to kneel.4

he bar

1 Lord Denman's judgment in Stockdale v. Hansard, Proceedings printed by the Commons, 1839, (283), p. 142. But this law never extended to an adjournment, even when it was in the nature of a prorogation; see 10 C. J. 537.

• Resolution 16th March, 1772, 33

ib. 594.

3 14 Hans. Parl. Hist. 894; 1 Walpole's Memoirs of George II. 15.

- Report of Precedents, 26 C. J. 48. There had, however, been simi. lar cases before the Lords, 3 Parl. Hist. 844. 880.

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ment.

PRIVILEGE OF FREEDOM OF SPEECH.

Table of Contents,

see IntroNecessity FREEDOM of speech is a privilege essential to every free duction. of freedom of speech. council or legislature. Its principle was well stated by the

Commons, at a conference on the 11th December, 1667 :
“No man can doubt," they said, “but whatever is once
enacted is lawful: but nothing can come into an Act of Par-
liament, but it must be first affirmed or propounded by some-
body: 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
Confirmed This important privilege has been recognized and con-
by law of
Parlia firmed as part of the law of the land. According to Elsynge,

the “Commons did oftentimes, under Edward III., 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 Hixey's In the 20th Richard II., however, a case occurred in

which this ancient privilege was first violated, and afterwards
signally 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 IV., 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
112 L. J. 166.

? Elsynge, 177.

case.

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