Privilege, Libel and the long road to Stockdale v. Hansard, Part I: from Strode’s Case to Article IX

In 1836 the House of Commons published a series of reports of the new prison inspectors appointed under an Act of Parliament passed the year before. The 1835 Act, one of several interventionist initiatives of the whig government elected in 1832, was designed to drive up standards in the locally-run prison system. That the inspectors’ report was generally available, rather than hidden in decent obscurity, as the result of another praiseworthy new initiative – a decision by the House of Commons in 1835 to allow all of its publications to be sold to the public through agents. The inspectors’ remark concerning a book with explicit plates of human reproductive organs that was found in the possession of one of the prisoners in Newgate jail set off a chain of unintended consequences that led to a series of law suits that are collectively referred to as Stockdale v. Hansard, a Gilbertian political farce and the biggest crisis in the relationship between the courts and parliament in British history.

It’s natural that one of the great strands of argument about parliamentary privilege should concern the publication of its proceedings: it is simply an extension of the privilege of free speech that had been asserted by generations of parliamentarians (if not necessarily conceded by monarchs). Monarchs might try to quibble about the extent of the privilege, but the courts were generally wary of making any assertion that they had jurisdiction over the actual proceedings of parliament (as opposed to the activities of individual members out of parliament).

The trouble was, that the legal basis and limits of this wariness were extremely vague, as discussed in a previous blog ; and it is just about inevitable that in the course of their routine activities both parliament and the courts would be asked to act in ways that continually question the boundaries between them. And it is all too easy for those boundary disputes to become inflamed rows about the rule of law and what we would these days call democracy. The question of libel is an obvious battleground on which battles between the rights of the individual and the legitimate requirements of a legislature dealing with issues of public policy. Stockdale v. Hansard is one of the biggest (if most absurd) of the battles. But it comes at the end of several hundred years of argument.

It’s difficult to understand Stockdale v. Hansard, and why the judges, and the House of Commons, behaved as they did, without some appreciation of the long road that led to it. As a result, what was originally a brief and supposed to be entertaining blog has become a rather lengthier, and no doubt much stodgier one. So I’ve split it into two, or maybe three, which at least means they are shorter, if not necessarily less stodgy. Today’s offering, to be continued, takes the story up to Article IX of the Bill of Rights and the 1690s.

 

From Strode to Eliot

The modern discussion of the relationship between the courts and the parliamentary privilege of free speech begins with the Strode case of 1512. The case involved the arrest and prosecution of a member, Richard Strode, in the Stannary court of Cornwall – a local jurisdiction regulating the tin-mining industry – as a result of his actions in the parliament of 1510. Strode secured a reversal of the judgment of the stannary court by an act of parliament (4 Hen. VIII c. 8), which also stated that any prosecution ‘put or had or hereafter to be put or had unto or upon the said Richard and to every other of the person or persons afore specified that now be of this present parliament or that of any parliament hereafter shalbe’ in respect of ‘any matter or matters concerning the parliament to be communed and treated of, be utterly void and of none effect’. ‘Strode’s case’ became important as a general statement of privilege, despite the fact that it involved a local court, that the act concerned was a private act, and that it apparently related only to those people named in it. That it did was because it was the only statutory statement of the privilege of free speech: it was, in effect, the only straw that could be seized.

Its weakness was obvious when it was bandied about in the notorious prosecution of Sir John Elliot, Denzil Holles and Benjamin Valentine for attempting to prevent the Speaker from adjourning the Commons at the end of the 1628-9. The judges were put under enormous pressure by the king to come to a decision on the case, which they were plainly reluctant to do. But their eventual judgment –  that offences had been committed by Elliot, Holles and Valentine that were triable by the court and that 4 Hen. VIII c. 8 was irrelevant as a defence – was a perfectly reasonable interpretation of the law as it stood. The judgment was regarded as an outrageous breach of their privilege by the Commons in the Long Parliament (resolutions of 6 and 8 July 1641); and after the Restoration it was formally reversed, both Houses asserting that Strode’s case ‘is a general Law, extending to indemnify all and every the Members of both Houses of Parliament, in all Parliament, for and touching any Bills, speaking, reasoning, or declaring of any Matter or Matters in and concerning the Parliament, to be communed and treated of; and is a declaratory Law of the ancient and necessary Rights and Privileges of Parliament’. [CJ 12 Nov. 1667] A year later the verdict of the 1629 case was rescinded through writ of error in the House of Lords. But this still fell short of creating statutory clarity about parliamentary privilege. (The 1661 Act for the safety and preservation of His Majesty’s Person did include a proviso acknowledging the ‘just ancient Freedom and privilege of debating any matters or business which shall be propounded or debated in either of the said Houses’ but though this was a statutory recognition of privilege, it did little more than to clarify that the various treasons defined in the Act did not apply to parliament.)

 

Informal publication and Lake v. King

Lake v. King, litigated between 1666 and 1671, is the earliest case involving parliamentary publication. There may be some connection with the reversal of the Eliot case, though this remains obscure. Sir Edward Lake was the senior legal officer (vicar general) of the diocese of Lincoln. He alleged that Edward King on 1 December 1666 ‘published a certain false, malicious, scandalous, and infamous writing and libel’ against him. This was a petition directed to the House of Commons committee for grievances concerning King’s allegations that the ecclesiastical courts had been operating illegally since 1660.  It was evidently part of a long-running struggle between the local ecclesiastical authorities and a man who had been a significant figure in local politics during the civil war, had been a member of the and continued to be the protector of Lincolnshire nonconformists. King had had the petition printed and delivered it to the members of the committee ‘according to the custom used by others in this behalf and approved of by the members of the said committee’.

The case was finally decided in 1671. It was probably initially the notoriously bullying Lord Chief Justice John Kelyng who presided (he is referred to in the report of the case as having taken a different view ‘in his lifetime’) but he died in 1671, allowing the more liberal Matthew Hale to take over. The court heard evidence from Richard Colman, a prominent lawyer who sat in the commons and had much to do with privilege cases and said that it was a routine practice for petitions to be printed and distributed to members of the committee (the court, incidentally, had no difficulty taking notice of proceedings of parliament and their committees). The court accepted that it was perfectly lawful to distribute a petition to a committee, even if its contents were libellous, ‘because it is in a summary course of justice, and before those who have the power to examine, whether it be true or false.’ But wider publication, it warned, would not be: ‘for if it were, then, under a pretence of proceeding in a course of justice, a libel might be printed, published and dispersed of any man throughout the whole kingdom, and yet he should have no remedy’.

 

R. v. Williams, the Seven Bishops and the genesis of Article IX

It was a warning that perhaps might have been taken more seriously by politicians when they contemplated the publication of other parliamentary material. Publication on the orders of parliament itself was common in the revolutionary conditions of the 1640s, but it effectively stopped with the beginning of the Protectorate in 1653 and the Restoration of the monarchy in 1660. But it was revived in the conflict over the succession of the Catholic, James, Duke of York (subsequently James II) to the throne in 1678-81, and the collection of conspiracy theories known as the ‘Popish Plot’, used to discredit him. The Commons resolved in October 1680 to publish a daily record of its decisions, the Vote ; not long afterwards, on 9 November, it agreed to print the evidence of Thomas Dangerfield about the plot, with its strong insinuations of the involvement of York in various aspects of it.

The defeat of the attempt to prevent York’s succession was followed by a series of political and legal reprisals, amongst them a number of legal actions by the duke himself. One of them was directed against William Williams, who as speaker in 1680, had authorised the publication of Dangerfield’s evidence. In Williams’s plea in defence, his counsel, Sir Robert Atkyns, claimed that anything done by the Speaker as the servant of the House of Commons was the act of the Commons itself, and that for any such action the Speaker ‘ought not to answer in any other court or place, but in parliament’ (Atkyns, 2). In the rather inadequate report of the 1684 judgment the lord chief justice (the famously unpleasant George Jeffreys) is quoted as dismissing the argument that the House of Commons was itself a court, and asking, presumably rhetorically, whether an order of the House of Commons could justify a ‘scandalous, infamous, flagitious libel’ before giving judgement for the king and a handing down an extraordinary and punitive fine of £10,000 against Williams.

The judgment was clearly meant to contribute to the political suppression of whiggism, which it did, brutally and effectively (bringing the case was also said by the contemporary historian Gilbert Burnet to have the aim of making it impossible for Charles II to summon a new parliament, given that it would be in uproar over the case and the sentence). Williams, who was hit with another case initiated by Earl of Peterborough, also libelled by Dangerfield’s Narrative, was not only cowed into quiescence, but also into active collaboration with James II’s regime when he became king: in 1687 he agreed to serve as solicitor general. But there is, in fact, plenty to be said for the decision of the court. Dangerfield’s information, like most of the evidence of the ‘Plot’, was somewhere between a fantasy and a farrago, and was clearly an outrageous libel. And whatever the status of the parliamentary claim to freedom of speech in parliament, no-one had previously sought to argue that it extended to publication of its proceedings, not surprisingly, given that parliamentary proceedings were not supposed to be publicized at all.

As solicitor general, Williams found himself in charge of the famous prosecution of seven of the Church of England’s bishops in 1688 for seditious libel, a prosecution set off by their publication of a petition objecting to James II’s Declaration of Indulgence. (If that wasn’t ironic enough, the bishops’ defence was undertaken by the man who had prosecuted Williams in 1686, Sir Robert Sawyer, and the trial concerned the political divisions between Whigs like Williams and Tories like Sawyer, just as much as it did the balance between executive power and personal freedoms. Both the Williams case and the Seven Bishops’ case are full of political needling between Sawyer and Williams and the judges). A preliminary issue in the case concerned whether libel was among those classes of action that could not be defended with a plea of privilege. In the case of the bishops, this meant privilege of peerage, rather than parliamentary privilege, though for most purposes, including this one, the two were effectively the same thing. The court decided that seditious libel was a breach of the peace, and therefore a plea of privilege could not prevent it from going ahead.

The Seven Bishops case helped to tip the scales in favour of the intervention of William, Prince of Orange in late 1688, leading to James II’s flight and the acceptance of the crown by William and his wife, James’s daughter Mary. The Declaration of Rights they accepted (the same text that was formally made into a statute and known as the Bill of Rights) was drafted by a committee that included both Williams and Sawyer. Article IX, ‘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’ reflected the Williams case. But did it extend to an order to print? The House of Commons agreed that the decision of the court in R. v. Williams was unlawful on 12 July 1689, and agreed to introduce a bill to reverse it; but despite three attempts, nothing was ever achieved. Part of the problem may have been Williams’s attempts to include in the bill a provision that Sawyer should compensate him for his fine, which ensured that it would be seen through the prism of party politics, rather than parliamentary privilege. The fact that during the proceedings on the 1695-6 bill he had to defend himself not just over his collaboration with James II, but also over the idea that he had been working with Charles II in 1680 rather than against him shows how much people were prepared to believe that there was something fishy about Williams.

To be continued…