CHAPTER Libels on the Houses of Parliament. Libels on Peers, how punished by the House of Lords. House of Lords, commit for contempt. upon an information exhibited against him for publishing a malicious libel, entitled "The Case of the Honourable Alexander Murray, in an appeal to the people of Great Britain," etc., tending to scandalize and vilify the whole body of the Commons in Parliament assembled; to represent the proceedings in Parliament as cruel, arbitrary, and oppressive; to make it believed that the Commons in Parliament assembled had acted, in their legislative capacity, in open violation of the constitution; and also to represent the said House of Commons as a court of inquisition, etc., etc. Upon the publication of this alleged libel by the defendant, the Commons addressed the King, desiring his Majesty to give orders to prosecute the publisher; which was done (b). After the impeachment of Mr. Hastings, a review of the articles of impeachment was published by John Stockdale. Upon the suggestion of Mr. Fox, one of the managers of the impeachment, the House unanimously voted an address to the King, praying his Majesty to direct his Attorney-General (c) to file an information against Mr. Stockdale, as the publisher of a libel upon the Commons. Libels upon members of the House of Lords have, in earlier times, been visited with great severity. In later times offenders have been attached for libels on peers; so, in 1722, for printed libels on Lord Strafford and Lord Kinnoul: and in 1776 for sending an insulting letter to the Earl of Coventry (d). Apart from the appellate jurisdiction of the House of Lords, jurisdiction to the House itself has power in its judicial capacity to commit for contempt, though the jurisdiction was questioned in the case of the Earl of Shaftesbury in the year 1675 (e). And so also in the year 1779, in the case of Benjamin Flower, who had been committed to the prison of Newgate for having published a libel on the Bishop of Llandaff; but on being brought before the Court of King's Bench by writ of habeas corpus, that court held, that although the House of Lords, when exercising a legislative capacity, is not a court of record; yet, when sitting in a judicial capacity, as in the present case, it was a court of record: and no case being cited in which it had been held to be illegal in the House of Lords to fine and (b) He was tried before Lee, C.J., and acquitted. (c) Macdonald, afterwards Lord Chief Baron of the Court of Ex chequer. (d) For other cases, ride May's Law and Usage of Parliament. (e) Vide 6 How. St. Tr. 1269. imprison a person guilty of a breach of privilege of the House. the court refused to discharge the defendant (ƒ). In 1834 the editor of the "Morning Post" was committed by the House of Lords to the custody of the Usher of the Black Rod, for a paragraph in that newspaper, reflecting upon the conduct of Lord Chancellor Brougham in the discharge of his judicial duties in the House of Lords (g). CHAPTER XXIX. power to contempt. The power of the House of Commons to commit for con- House of Commons, tempt stands upon the ground of reason and necessity independent of any positive authorities on the subject; but it commit for is also made out by the evidence of usage and practice, by legislative sanction and recognition, and by the judgments of the courts of law, in a long course of well-established precedents and authorities (h). One of the most important privileges of the House of Commons is the privilege of committing for contempt; and incidental to that privilege is the right of the House to be themselves the judges of what is contempt, and to commit for that contempt by a warrant, stating generally that the commitment is for contempt of the House, without specifying what the character of the contempt is. In the case of Burdett (Bart.) v. Abbot (i) it was held, on a consideration of all the authorities, that a commitment by the Speaker of the House of Commons, of the plaintiff, a member of the House, upon a resolution of the House that a printed paper, the printing of which had been authorised by the plaintiff, was a libel on the House, and that an order by the House that he should be committed on the Speaker's warrant was legal (k). Libels upon members of the House of Commons have frequently been punished by the House with the committal to prison of the offender. There are also many cases (as already mentioned) in which the Attorney-General has been directed to prosecute offenders in the law courts. It was shortly after one of these prosecutions, in the year 1701, that the following resolution was entered on the journals of the House of Commons:-"That to print or publish any books or libels reflect (f) The King v. Flower, 8 T. R. 314. (9) Hans. Deb. 1834; 66 Lords' Journals, 701, 737, 743, 764. (h) Burdett v. Abbot, 14 East, 1, 158; affirmed in Ex. Cham. 4 Taunt. 401, and in Ho. Lds. 5 Dow, 165. (i) 14 East, 1, supra. (k) And see Reg. v. The Sheriff of Middlesex, 11 A. & E. 273; 8 Dowl. 451. CHAPTER ing upon the proceedings of the House of Commons, or any member thereof, for or relating to his service therein, is a high violation of the rights and privileges of the House of Commons" (l). In 1790 a general resolution was passed by the House of Commons, "That it is against the law and usage of Parliament, and a high breach of the privilege of this House, to write or publish, or cause to be written or published, any scandalous and libellous reflection on the honour and justice of this House, in any of the impeachments or prosecutions in which it is engaged." Among the most recent cases in which the power of the House has been exercised in that respect are the following: -In 1805 Peter Stuart was committed for printing, in his paper, libellous reflections on the character and conduct of the House. In 1810 Sir Francis Burdett, a member, was sent to the Tower for publishing "a libellous and scandalous paper, reflecting upon the just rights and privileges of the House." In 1819 Mr. Hobhouse, having acknowledged himself the author of a pamphlet which the House had previously declared to be "a scandalous libel, containing matter calculated to inflame the people into acts of violence against the legislature, and against this House in particular; and that it is a high contempt of the privileges, and of the constitutional authority of this House"; he was committed to the prison at Newgate (m). In 1821 the author of a paragraph in the "John Bull" newspaper, containing a false and scandalous libel on a member of the House, was committed to Newgate. In 1832 a firm of solicitors were summoned to the bar of the House of Commons, and admonished by the Speaker, for having addressed to a parliamentary committee sitting on a dock bill, a letter reflecting on the conduct of members of the committee, copies of which had been circulated in printed handbills (n). In 1838 complaint was made of certain defamatory expressions in a speech delivered by Mr. Daniel O'Connell, a member, at a public meeting, as containing imputations of perjury against certain members of the House in the discharge of their judicial duties in election committees. Mr. O'Connell was heard in his place in the House; and on acknowledging that he had used the expressions complained of, was declared guilty of a breach of (1) Coms. Jour. 767. (m) Hobhouse's case, 3 B. & Ald. 420. (n) See Coms. Jour. 1821 and 1832. privilege; and by order of the House was reprimanded in his place by the Speaker (o). CHAPTER ΧΧΙΧ, of Commitment And, however flagrant the contempt, the House of Commons Limit to time can only commit till the close of the existing session. Their by Parliament. privilege to commit is not better known than this limitation of it. Though the party should deserve the severest penalties, yet, his offence being committed the day before a prorogation, if the House ordered his imprisonment but for a week, every court in Westminster Hall, and every judge of all the courts, would be bound to discharge him by habeas corpus (p). of Committal When the House of Commons has committed any person for The propriety contempt, the propriety of such commitment cannot be ques- by Parliament tioned in any court of law, nor can it be inquired whether the cannot be questioned in person committed has been guilty of a contempt of the House. courts of law In such instances there is an adjudication of a court of competent authority in the particular case, and the court which is desired to interfere, not being a court of error or of appeal, cannot entertain the question whether the authority has been properly exercised (q). A warrant of commitment for contempt, issued by the Speaker of the House of Commons, must be construed as a writ from a superior court, and not as a process issued by the magistrate of an inferior court (). lative Assem. The privilege enjoyed by the House of Commons of punish- Contempts of ing for contempts, is one belonging to it by virtue of the lea Colonial Legiset consuetudo parliamenti, which is a law peculiar to and inherent blies. in both Houses of Parliament. But it is not to be inferred from the possession of those powers and privileges by virtue of that ancient usage and prescription, that the same or like powers belong to the legislative assemblies of recent creation in the dependencies of the Crown. The lex et consuetudo parliamenti applies exclusively to the House of Lords and House of Commons in England, and is not conferred upon a supreme legislative assembly of a colony or settlement by the introduction. of the common law of England into the colony. No distinction in this respect exists between colonial legislative councils and assemblies, whose power is derived by grant from the Crown, (0) Ho. Com. Jour. 1838. For other cases of more recent date, vide Ho. Com. Jour. of subsequent years. (p) Per Lord Denman, C.J., in Stockdale v. Hansard, 8 A. & E. 114. (4) Per Patteson, J., in Stockdale v. Hansard, 9 A. & E. 195; and see per Littledale, J., Ibid., p. 169. (r) Gossett v. Howard, 10 Q. B. 411. CHAPTER Power to punish for Contempts. or created under the authority of an Act of the Imperial Parliament (s). The power of committing for contempts, therefore, does not belong to every colonial legislative assembly: nor can the power be said to be incident to a legislative assembly by analogy to the English courts of record, which, having judicial functions, possess the power of adjudicating upon, and punishing, in a summary manner, contempts of their authority. In Beaumont v. Barrett (t) it was held that the power of punishing contempts is inherent in every assembly possessing a supreme legislative authority; whether such contempts tend indirectly to obstruct their proceedings, or directly to bring their authority into contempt. And that the House of Assembly in Jamaica being possessed of supreme legislative authority over that island and its dependencies, has such power, and was therefore justified in committing a party guilty of publishing certain libellous paragraphs which had been resolved a breach of the privileges of the House, to the custody of the keeper of the common gaol in that island, to be detained during the pleasure of the House. But in the subsequent case of Kielley v. Carson and others (u), it was held that the House of Assembly of the island of Newfoundland did not possess, as a legal incident, the power of arrest with a view of adjudication on a contempt committed out of the House; but only such powers as were reasonably necessary for the proper exercise of its functions and duties as a local legislature. And Parke, B., in delivering the judgment of the court, observed upon his former judgment in the case of Beaumont v. Barrett (in which he had held that the power of punishing for contempts was incidental to every legislative assembly) that the opinion he so expressed was in some degree extra-judicial, and was not the only ground on which the judgment in that case rested: that he and their lordships did not consider that case as one by which they ought to be bound in deciding the present case: and further, that the dictum of Lord Ellenborough in Burdett v. Abbot (x) could not be taken as an authority for the abstract proposition, that every legislative body has the power of committing for contempt: the observation having been made by his lordship with reference to the peculiar powers of Parliament, and ought not to be extended any further (y). (8) Fenton and another v. Hampton, 11 Moore, P. C. C. 347. (t) 1 Moore, P. C. C. 59. (u) 4 core, P. C. C. 63. (a) 14 East, 1. (y) Kielley v. Carson and others, ↓ Moore, P. C. C. 91. |