face of the earth." It was said " Parliament, when they did amiss, would be talked of with the same freedom as any other set of men whatsoever." Sir Robert Walpole complained, that he had read professed debates of the House, wherein all the wit, the learning, and the argument had been thrown into one side, and on the other nothing but what was low, mean, and ridiculous; and yet when it came to the question, the division had gone against the side which upon the face of the debate had reason and justice to support it. Each speaker assumed, that the practice must be stopped, but all were unconscious, that the time was coming, when it would be impossible to do so. And the House relieved its misgivings by resolving, "that it is a high indignity to and a notorious breach of the privileges of the House for the printer of any newspaper to presume to give any account of the proceedings of the House as well during the recess as the sitting of Parliament." 2

Newspaper reports of debates now permitted by Parliament.-By degrees newspaper reports of Parliamentary debates became more and more frequent and less and less odious to the members of the legislature, though no express leave has yet been given, nor even the order yet been cancelled which treats these as contempts. The reason usually given, why Parliament has refused to embody in some statute this right of all men to publish

1 10 Parl. Hist. 285.

210 Parl. Hist. 812. To such shifts were reporters reduced for veracious materials, that DR. JOHNSON said he had composed the famous report of a speech of Pitt in answer to Horace Walpole in a garret near the Strand; and in his Parliamentary reports generally he took care, that the Whig dogs should not have the best of it in the arguments.-Boswell's Johnson; Hawkins' Johnson. And LORD KENYON said (temp. 1778) Johnson had composed the famous speech of L. Chesterfield against the Dramatic Licensing Act.-See post, chap. xi. When the votes were first printed a formal motion for leave was moved for every day.

3A faithful report, published in a newspaper or by any volunteer, of a debate in either House of Parliament, though it contain matter which is per se libellous to an individual who is mentioned therein, is a right which belongs to the public; and the individual so libelled has no remedy against the publisher or any other person. The reason is, that all the public have an equal interest in the subjects debated in Parliament by the representatives of the nation, and such interest could not be made real and effectual unless the right

reports of Parliamentary proceedings is, that in practice Parliament has ceased to punish these publications as breaches of privilege.' But a better reason is, that the extreme remedy is, like some other remedies of the Constitution, kept in hand, solely to meet some rare emergency which may or may never arise; yet, should it ever arise, no other remedy will be equally effective. No practical evil has flowed from the freedom allowed to reporters and publishers in this respect. Since the regular publication of the debates has been encouraged, the chief complaint on the part of members of each House of Parliament at first was occasional unfairness or rather one-sidedness, either by giving a misleading abstract or entirely omitting speeches; but even this cause of complaint has ceased, for the press is many-sided, and it can seldom be prudent in any one journal to do otherwise than aim at correctness and completeness.2 Moreover, though a standing order is maintained, which in terms prohibits strangers from publishing the debates, this can practically do no injury, because it is at most a remedy and a restriction which can only be enforced by Parliament itself. It is not open to informers or any member of the public. Being under the exclusive control of the legislature, it would require the collective wisdom of Parliament to be combined, in order to crush any individual offender. And this cannot be reasonably anticipated and need no longer be dreaded, since all the habits of life, all the instincts of an intelligent and self-governing community conspire to make the familiar knowledge of Parliamentary proceedings free as the air we breathe.3

of publication attached to each and every person who volunteered to publish it. Wason Walter, L. R. 4 Q. B. 73.

În 1831 a gallery was for the first time erected in the House of Lords for reporters.-8 Parl. Deb. (3) 813.

170 Parl. Deb. (3) 1225, 1254; 149 Ib. 947. 2 105 Parl. Deb. (3) 190.

3 Whenever one member used to move to exclude strangers, and so made it necessary for the order to be enforced, it was equally competent for the House thereupon to resolve at once to suspend the standing order, and this has often been urged as the all-sufficient remedy and check.-224 Parl. Deb. (3) 90. In modern times an improvement has taken place in the procedure. Under an order made in H. C. 31 May 1875, whenever a member calls the attention of the Speaker to the presence of strangers, the motion is put at once to the House without any debate, so as to see whether the

Punishment for breach of privilege. The pillory was the usual punishment for breach of privilege till 1716. In 1620 two persons were ordered, for contemptuous speeches against the power of Parliament, to be set on horseback without cloak or hat, to wear papers on their breasts and backs, and so to pass to the Fleet prison, where they were immured. For a slander of the Lord Keeper in 1626 the culprit was ordered to stand in the pillory at Westminster, then ride backward to Cheapside, then stand there in the pillory, and then ride back to the Fleet. In 1716 Parliament began only to fine, and sometimes to reprimand the offender. One of the difficulties attending any punishment arose out of the practice, whereby a person charged at the bar and reprimanded was expected to receive the reprimand on his bended knees, and also to express some kind of penitence before he was discharged. At last the inevitable hour arrived, in 1770, when one prisoner was found who would not kneel; and the House seeing the difficulty, abolished this as a condition of such a discharge.

opinion of one member meets with the general concurrence.-Ibid. 1176. Moreover the Speaker, and also the chairman of a committee, can at any time order strangers to withdraw.

1 8 Parl. Hist. 410.

2 Ibid. 411. While the pillory was one of the regular punishments, and formed part of the lex et consuetudo parliamenti, that punishment has never been repealed by any order of the House, and therefore to this day it would be in accordance with Parliamentary usage still to resort to it. But inasmuch as in 1837 a statute was passed, which utterly abolished it as a punishment upon any conviction in the ordinary courts (though not in terms applicable to the orders of Parliament), it would be singular, if Parliament, after laying down an inflexible rule for all other tribunals, should continue to use this barbarous punishment itself. (1 Vic. c. 23.) And for that reason the pillory may be deemed practically abolished in all cases of breach of privilege. 3 Ibid. 414.

Re Murray, 14 Parl. Hist. 894; 1 Pat. Com. (Pers.) 38. As L. CAMDEN (when junior counsel on a trial about this matter) explained it to a jury: "The defendant merely refused to throw himself into that attitude of humility, which he reserved for the occasion of acknowledging his sins and praying for pardon before the throne of the Supreme Governor of the Universe."-5 Campb. L. Chrs. 326. The minority of the House of Commons in defending the early printers of the debates in vain urged, that if the printer be summoned, he ought not to be ordered to go on his knees to be reprimanded by the Speaker. But the majority prevailed. And Mr. Baldwin, printer of St. James' Chronicle, and another printer, on

Another difficulty has been raised as to the cognate practice of the House of Commons-not to discharge a prisoner till he had expressed due contrition for his offence. In the case of Gale Jones in 1810, who placarded London with the programme of a debating society, which the House deemed libellous, he was committed and ordered to be kept in prison, till he submitted himself to the mercy of the House, which he refused to do. The Speaker told the House it was usual, not to release offenders till they had acknowledged their offence and expressed sorrow. Some members thought this did not amount to requiring the prisoner to recant, which Whitbread said was the real meaning; and that many men would rather rot in prison than submit to such humiliation. Nevertheless the House refused to release Jones without a petition and some apology.1

14 March, 1771, went on their knees and were reprimanded accordingly, and then discharged. These were the last printers who kneeled at the bar of the House, the practice of prisoners kneeling being discontinued in 1772 by a standing order then made.-33 Com. J. 594; 17 Parl. Hist. 311.

116 Parl. Deb. 726; 17 Parl. Deb. 658. SIR S. ROMILLY said in reference to this practice, that it was asking too much to require a man to humiliate himself by a formal abjuration of opinion before he was discharged; and such was not necessary in any civil court, though abjuration might be required in a spiritual court.-H. C. 16 Parl. Deb. 486.

In another case, shortly before that of Gale Jones, an editor of a newspaper, having published a draft report of a select committee on a topic of great excitement, and made it appear to be the final decision of Parliament, he was summoned to the bar, and refused to give any information as to the way in which he procured the paper. He was committed to the custody of the serjeant-at-arms, and afterwards, on petition, to the effect, that he was not aware of his offending, was discharged at once with a reprimand.-Re Sheehan, 13 Parl. Deb. (3d) 319.

CHAPTER VII.

LIBELS AND COMMENTS ON COURTS OF JUSTICE, REPORTS OF TRIALS, AND COMMENTS ON PUBLIC MATTERS.

Contempt of Court by interfering with the business.In a country where free speech is the rule, and the fewest possible restrictions to it exist, it would be singular, if the proceedings of courts of justice did not supply a large portion of the material for daily comment. As in the case of proceedings in Parliament, the business transacted in courts of justice comes home to every one, and there is no reason why all that is done there should not be open to every kind of observation both in speech and in the press. To watch and sometimes take part in the business is always a ready means of knowledge as to the working of the Constitution, and to read an account of what is done there gives the most reliable information to all as to the security of their own persons and property, which no other reading so well supplies.1 And courts, as may be supposed, are sometimes well spoken of, and sometimes the reverse. And as the administration of justice is of equal importance to the making and reforming of the law, and is entitled to be surrounded with a dignity appropriate to its place in the Constitution, the same occasions for collision arise, where free comments are made on the exercise of so high a function. Courts of law must therefore, as in the case of Parliament, be credited with sufficient power to vindicate and protect their procedure against attacks, for as courts are the

1 BURKE has said, nothing better could be devised by human wisdom than argued judgments, publicly delivered, for preserving unbroken the great traditionary body of the law. -Burke, Com. to inspect Journals.