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Whether
House of

be a court

of record.

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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 the House of Commons be, in law, a court of Commons record, it would be difficult to determine; for this claim, once firmly maintained, has latterly been virtually abandoned, 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, 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 imposed by the Com

mons.

In Floyde's case, in 1621, the Commons clearly exceeded 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 1000l., to stand twice in the pillory,

1 82 L. J. 478.

2 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 by a prorogation, 26 L. J.

course

420.

• 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.

III.

Chapter and to ride backwards on a horse, with the horse's tail in his hand.1 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 jurisdiction in this case, the Lords equally disregarded the limits of their own, and proceeded to still more disgraceful severities. 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 5000l. to the king, and be imprisoned in Newgate for life.2

The last case of a fine by the Commons occurred in 1666, when a fine of 1000l. was imposed upon Thomas White, who had absconded after he had been ordered into the custody of the Serjeant-at-arms.3

4

modes of

ment.

The modern practice of the Commons is to commit Present persons 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; 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

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

21 C. J. 619; 3 L. J. 134; "Proceedings and Debates of the Commons," 1620, 1621 (Oxford); and 1 Hans. Parl. Hist. 1259; see also the treatment of Nayler by the Protectorate Parliament, 7 C. J. 465; Palgrave's Oliver Cromwell, 187.

8 C. J. 690.

4 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.
$95 C. J. 291. 337; 97 ib. 224.

On the 9th May, 1604, it was
"delivered for a rule, that no delin-
quent 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.

and admonition.

III.

been dispensed with. A member, if in custody of the Chapter Serjeant, is reprimanded at the bar; but, otherwise, in his place.2 Reprimand It is not customary to order a person to be reprimanded 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.1 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. reprimand or admonition is always ordered to be entered in the journals. Where the offence has been slight, or the apology is accepted as satisfactory, even an admonition words 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

fees.

Imprisonment by the Com

8

The Speaker's See formal

Payment of fees was formerly remitted, by order, under special circumstances: but, according to present usage, no order for the payment of fees is made, unless called for by the nature of the offence.9

No period of imprisonment is named by the Commons, and the prisoners committed by them, if not sooner dismons con- charged by the house, are immediately released from their

cluded by confinement on a prorogation, whether they have paid the

proroga

tion.

fees or not. If they were held longer in custody, they

1 75 C. J. 467; 103 ib. 263; 113 ib.
203; 150 H. D. 3 s. 1313. 1404. John
Sandilands Ward, 29th July, 1879;
134 C. J. 385; Mr. Bradlaugh, 24th
June, 1880; 135 ib. 241; 86 ib. 333;
90 ib. 532; 95 ib. 96; 101 ib. 768.
2 21 ib. 872; 45 ib. 516; 93 ib.
316; 147 ib. 167.

35 Parl. Hist. 910; 82 C. J. 395.
399; 93 ib. 316; 156 ib. 418.

+ Bidmead's case, 20th June, 1887, 142 C. J. 306.

$ 87 ib. 294; 88 ib. 218; 97 ib.

143; 147 ib. 166.

Case of Mr. Hope, 17th July,
1822, 77 ib. 432; 7 H. D. 2 s. 1668.
7 Case of Mr. Menzies, 17th July,
1822; case of Mr. Reed, 27th Feb.
1863, 118 C. J. 106.

$ 58 ib. 221; 74 ib. 192; 80 ib.
470; 83 ib. 199; 85 ib. 465; 90 ib.
532; 106 ib. 147; 107 ib. 301; 108
ib. 595, &c.

See last three cases, 113 ib. 208; 114 ib. 342; 134 ib. 385.

motions, p. 215;

entry of Speaker's

Chapter would be discharged by the courts, upon a writ of habeas corpus.1

III.

the bar.

It was formerly the practice to make prisoners receive Prisoners kneeling at the judgment of the house, kneeling at the bar in both houses, however, this practice has long since been discontinued.2 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 privilege 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

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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 similar cases before the Lords, 3 Parl. Hist. 844. 880.

of freedom

of speech.

CHAPTER IV.

PRIVILEGE OF FREEDOM OF SPEECH.

Chapter
IV.

Table of Contents,

see Intro

Necessity FREEDOM of speech is a privilege essential to every free duction. 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 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

Confirmed by law of Parliament.

Haxey's

case.

This important privilege has been recognized and confirmed 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." a

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 2 Elsynge, 177.

112 L. J. 166.

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