« 이전계속 »
Chapter and temporal.1 This was unquestionably an acknowledgment Iy" 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
Again, in the 4th Henry VIII. (1512), Mr. Strode, astrode's
Far resolu- proceedings which had already taken place against Strode
tton of the * ° .... ,
Ormmons were declared to be void, it is evident that freedom of p^wT' S*e speech was then admitted to be a privilege of Parliament, arid was not at that time first enacted; and that the statute was intended to have a general operation in future, and to
1 1 Hen. IV.; 3 Bot. Pari. 430. of Thomas Young, 33rd Henry VI.; f
* "Si bien en accomplissement de 5 Rot. Pari. 337.
droit, come pur salvation des liberte's '4 Pari. Hist. 85; 1 Hatsell, 86.
de lez ditz communes." 5 4 Hen. VIII. o. 8.
'3 Rot. Pari. 434; also the case
protect all members, of either house, from any question on chapter account of their speeches or votes in Parliament. 1V
Petition of the Commons.
Thirty years afterwards the petition of the Commons to ^''^J*. the king, at the commencement of the Parliament, appears to the sorefor the first time to have included this privilege amongst behalf of those prayed for of the king,1 which has since become the ',^<om~ established practice. privileges,
* see p. 59.
interpret.!- But notwithstanding the repeated recognition of this privilege." privilege, the Crown and the Commons were not always agreed upon its limits. In reply to the usual petition of the Speaker, Sir Edward Coke, in 1593, the lord keeper said, "Liberty of speech is granted you, but you must know what privilege you have; not to speak every one what he listeth, or what cometh in his brain to utter; but your privilege is 'aye' or 'no.'"2 In 1621, the Commons, in their protestation, defined their privilege more consistently with its present limits. They affirmed "that every member hath freedom from all impeachment, imprisonment, or molestation, other than by censure of the house itself, for or concerning any bill, speaking, reasoning, or declaring of any matter or matters touching the Parliament or Parliament business."
Violations it is needless to recount how frequently this privilege privilege, was formerly violated by the power of the Crown. The Act of the 4th Henry VIII. 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, of Mr. Cope, Mr. Wentworth, and others, in 1586, and of Sir Edwin Sandys, in 1621,8 will serve to remind the reader how imperfectly members were once protected against the unconstitutional exercise of prerogative.
1 The petition 33rd Henry VIII. ment in the second and ninth years
(1541), by Thomas Moyle, Speaker, of his reign, 3 Rot. Pari. 456. 611;
Elsynge, 176. Soo also the Com- 4 Inst. 15.
mons' petition for freedom of speech, * 1 Pari. Hist. 862.
and King Henry IV.'s answer, and J 1 Hatsoll, 79; D'Ewes, 166,410;
his subsequent confirmation of the 4 Pari. Hist. 153; 1 C. J. 635; 1
right of free discussion in Parlia- Hatsell, 136.137.
The last occasion on which the privilege of freedom of sir J. Eliot speech was directly impeached, was in the celebrated case and others' of Sir John Eliot, Denzil Hollis, and Benjamin Valentine, against whom a judgment was obtained in the King's Bench, in the 5th Charles L, 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.1 The judgment had been given against the privilege of Parliament, upon the false assumption that the Act of the 4th Henry VIII. had been simply a private statute for the relief of Strode, and had no general operation. To condemn this construction of the plain words of the statute, the Commons resolved, 12th and 18th November, 1667, "That the Act of Parliament in the 4th Henry VIII., commonly intituled 'An Act concerning Richard Strode,' is a general law," extending to all members of both houses of Parliament; "and is a declaratory law of the ancient and necessary rights and privileges of Parliament," and " That the judgment given, 5 Car., against Sir John Eliot, Denzil Hollis, and Benjamin Valentine, in the King's Bench, was an illegal judgment, and against the freedom and privilege of Parliament." The Lords, at a conference agreed to the resolutions of the Commons; and, upon a writ of error, the judgment of the Court of King's Bench was reversed by the House of Lords, on 15th April, 1668.2
This would have been a sufficient recognition by law of its recognithe privilege of freedom of speech: but a further and last statute, confirmation was reserved for the Revolution of 1688. By the 9th Article of the Bill of Rights it was declared, "That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament."8
But, although by the ancient custom of Parliament, as offensive well as by the law, a member may not be questioned out of with by* * Parliament, he is liable to censure and punishment by the
house itself, of which he is a member. The cases in which chapter
20 A18e'n ^ a mem^er should say nothing disrespectful to the
extend to should publish his speech, his printed statement becomes separately a separate publication, unconnected with any proceedings in published. par]jament. This view of the law has been established by
two remarkable cases. Lord In 1795, an information was filed against Lord Abingdon
case. for a libel. He had accused his attorney of improper professional conduct, in a speech delivered in the House of Lords, which he afterwards published in several newspapers, at his own expense. Lord Abingdon pleaded his own case in the Court of King's Bench, and contended that he had a right to print what he had, by the law of Parliament, a right
1 4 L. J. 475; 5 ib. 77; Sir R. June and 3rd July, 1882; 137 C. J.
Canne, 1080, 9 O. J. 642; Mr. Man- 823. 328.
ley, 1096,11 ib. 581; Mr. Shepherd, • Dillon v. Balfour, Q.B.C.P. and
1 ib. 524. Ex. Div. xx. 600.
to speak: but Lord Kenyon said, that "a member of Parliament bad certainly a right to publish his speech, but that speech should not be made a vehicle of slander against any individual; if it was, it was a libel." The court gave judgment that his lordship should be imprisoned for three months, pay a fine of 100i., and find security for his good behaviour.1
In 1813, a much stronger case occurred. Mr. Creevey, Mr. a member of the House of Commons, had made a charge J^TMs 8 against an individual in the house, and incorrect reports of his speech having appeared in several newspapers, Mr. Creevey sent a correct report to the editor of a newspaper, with a request that he would publish it. Upon an information filed against him, the jury found the defendant guilty of libel, and the King's Bench refused an application for a new trial.2 Mr. Creevey, who had been fined 100Z., complained to the house of the proceedings of the King's Bench: but the house refused to admit that they were a breach of privilege.3
The Lord Chief Justice of England, in a more recent Mr case, further laid it down, that " if a member publishes his case. own speech, reflecting upon the character of another person, and omits to publish the rest of the debate, the publication would not be fair, and so would not be privileged," but that a fair and faithful report of the whole debate would not be actionable.4
The privilege which protects debates, extends also to re- ^rxig0ht ports and other proceedings in Parliament. In the case of Rex v. Wright,8 Mr. Home Tooke applied for a criminal information against a bookseller, for publishing the copy of a report made by a Commons' committee, which appeared to imply a charge of high treason against Mr. Tooke, after he had been tried for that crime and acquitted. The rule, however, was discharged by the court, partly because the report did not appear to bear the meaning imputed to it,
1 1 Esp. N. P. C. 228. * Wason v. Walter, 1867, L. R. 1
1 See Lord Ellenborough's judg- Q.B. 89.
ment, 1M.4S. 278. » 8 Term Reports, 293. » 68 C. J. 704; 26 H. D. 1 s. 898.