This is a series of three blogs about Parliament and Libel. The first, Privilege, Libel and the long road to Stockdale v. Hansard, Part I: from Strode’s Case to Article IX, dealt with the earliest encounters, in the seventeenth century, between parliamentarians and the court over the publication of material that the parliamentarians believed was protected by privilege, the most notorious and important of which was the case of Speaker Williams, prosecuted for the publication of Thomas Dangerfield’s Information of 1680 concerning the Popish Plot. The case ultimately led to the introduction of Article IX of the Bill of Rights, which is still the authority text for parliamentary privilege today. However, the guilty verdict against Williams was never rescinded.
The result of the failure to reverse the judgment in R. v. Williams meant that there remained plenty of ambiguity about whether or not Article IX made it possible to publish parliamentary proceedings without becoming liable to actions for libel. The question seems not to have caused any difficulty for seventy years or so. Presumably that was because both houses of parliament tried to suppress the publication of any accounts of their debates and published very few, if any, reports of committees or other material. While publication of the Commons’ Votes continued (with one or two brief hiatuses), the summary reports of the House’s decisions apparently never contained anything on which someone felt brave enough to raise an action for libel.
Wilkes and Libel
The prosecution mounted by the government against John Wilkes in 1763 was not directly about a proceeding in parliament, though it did concern an article describing the King’s speech in parliament as ‘the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind’. It did, however, have implications for how the law on parliamentary privilege would develop. John Wilkes, journalist, rake, member of parliament and force of nature, started a new periodical, The North Briton, in June 1762 that was essentially a stream of insinuation and outright abuse against Lord Bute, the then prime minister and favourite of King George III, and his allies. It ‘proceeded’, Horace Walpole wrote, ‘with an acrimony, a spirit, and a licentiousness unheard of before even in this country’. Walpole was surprised the government didn’t act earlier than it did; but its patience snapped with No. 45, perhaps because it was personally offensive to the King. In April 1763 the government issued its notorious general warrant for the arrest of the authors and publishers of the issue. The legality of the general warrant came to be the key point at issue in the case as a whole, but parliamentary privilege was the rock on which the government’s efforts initially collapsed. After Wilkes was arrested, he pleaded parliamentary privilege. The government’s lawyers (basing their argument on the case of the Seven Bishops of 1688) claimed that since libel tended to breach of the peace, it was not covered by privilege. In his judgment on 6 May Lord Chief Justice Pratt (later Lord Camden) ditched the precedent set in the Seven Bishops case and accepted the response of Wilkes’s counsel: that while libel might tend to a breach of the peace, it clearly wasn’t a breach of the peace as such. And Wilkes was discharged from his imprisonment.
The government was infuriated by this — very unexpected — result, and placed articles in its client newspapers arguing that it was outrageous that a member of Parliament should be allowed to get away with something that an ordinary subject could not. When parliament met again in November, the government advanced a series of resolutions from both houses designed to pave the way for a successful prosecution of its bugbear, Wilkes. The first of them, asserting that North Briton no. 45 was a seditious libel, was passed on 15 November. (At the same time, the government arranged for an attack on Wilkes in the Lords on the grounds of his authorship of a pornographic poem, his Essay on Woman, which the Lords voted to be a ‘scandalous, obscene and impious libel’.) The second of the government’s resolutions was passed on 24 November. It said that ‘privilege of parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws, in the speedy and effectual prosecution of so heinous and dangerous an offence’. It was passed only after an enormous, and often tortured, debate (as were many of those caused by Wilkes’s subsequent career). George Grenville, the prime minister, insisted that Pratt’s judgement was ‘wrongly, unduly and precipitately given’. Lord North peddled the argument that had been trailed in the newspapers, that the case concerned ‘equality of justice’, and advanced the orthodox view, that treason, felony and breach of the peace could not be defended by privilege, and the more arguable case that this could be extended to any criminal activity. He referred to the Seven Bishops’ case and pointed out that the judges’ decision in respect of privilege had never been reversed. ‘Liberty was privilege, privilege liberty’, he said, according to the notes of the debate by James Harri: ‘don’t pretend to the people we are supporting their liberty by a privilege which operates against them – nor cajole them, when in fact we have not been asserting liberty, but establishing exemption, arrogating a licence of misdemeanour to ourselves and servants – to establish this a privilege would be of fatal consequence to the safety of the Crown and the liberty of the people’.
The resolution was repeated in the House of Lords, though it provoked a formal protest, signed by sixteen peers, in which they denied the claim that privilege could never be pleaded against a criminal prosecution, a claim by which ‘all the records of parliament, all history, all the authorities of the gravest and soberest judges, are entirely rescinded; and the fundamental principles of the constitution, with regard to the independence of parliament, torn up, and buried under the ruins of our most established rights’.
Wilkes’s immediate relevance to the story of libel and parliamentary privilege ends there; but Wilkes’s indirect impact on it is just as significant. For his story continues with his expulsion from the Commons in January, his flight to Paris, the debates over the the general warrants issued by the government, and, eventually, the battle in 1770-1 over the reporting of parliamentary debates in the newspapers. The consequent abandonment by the Commons, and then the Lords, of their opposition to the publication of debates would vastly expand the potential for parliamentary libel.
R. v. Abingdon, 1794
The implications of the uninhibited publication of parliamentary debates for the issue of libel and parliamentary privilege were first tested in the prosecution of Lord Abingdon. In a speech in the House of Lords on 17 June 1794, the eccentric fourth earl of Abingdon complained of ‘the pettifogging attornies of this country; who like the locusts in Africa, fall like a cloud upon the earth, and eat up every thing they meet with.’ He would, he said, introduce a bill in the next parliament to regulate the profession. But while he claimed to be raising a general grievance, he really was dealing with a personal one. ‘It is now five years’, he bitterly went on, ‘that I have been in the gripe of one of these locusts, and whom, for the sake of the courts of justice, and as a warning to others, I will name. For the sake of courts of justice, that the judges, as well as the sound part of the profession, may keep a watchful eye over him; and as a warning to others, that by avoiding him they may, insomuch at least, escape the treatment that I have met with’. Naming his target as ‘Mr Thomas Sermon, gent., as he calls himself, that is gentleman I suppose, of No. 1, Coney Court Gray’s Inn’, he accused him of treating him in every way ‘which the blackest ingratitude could suggest, which treachery could invent, and in the art of pettifogging, the extremity of wickedness could practise upon me’. Having delivered his speech, Abingdon sent his text to the newspapers, and it was published in several of them.
It was, quite obviously, a very foolish thing to do. Sermon initiated a criminal prosecution for libel, and the case was heard in King’s Bench in December (members of the House of Lords were entitled to trial by their peers only in cases of treason or felony). The prosecutor was the celebrated Scottish lawyer and radical MP Thomas Erskine, fresh from his successes in defending the treason trials of Thomas Hardy, John Horne Tooke and John Thelwall. Abingdon, compounding his foolishness, decided to defend himself, and omitting to justify his remarks about Sermon, to stand on the sole ground of parliamentary privilege. He lost.
In his judgment, Lord Chief Justice Lord Kenyon said that ‘as to the words in question, had they been spoken in the House of Lords, and confined to its walls, that court would have no jurisdiction to call his lordship before them, to answer for them as an offence’. In Abingdon’s case, however, ‘the offence was the publication under his authority and sanction, and at his expense’. A member of either House of Parliament certainly had a right to publish his speech, he accepted, ‘but that speech should not be made the vehicle of slander against any individual; if it was, it was a libel’. Since Abingdon presented no evidence as to whether or not he was justified in the charges he made against Sermon, it was assumed that it was indeed a malicious libel, and therefore that he was guilty. Abingdon ended up, perhaps remarkably, given his status, with a fine of £100 and a three months’ term of (no doubt relatively comfortable) imprisonment.
R. v. Wright, 1797
Five years later, John Horne Tooke, one of the radicals defended by Erskine in 1794, began an action for libel against a bookseller who reprinted a paragraph contained in the report of the House of Commons committee of secrecy of 1799. The original report had been ordered to be printed, but for the use of members of the committee only, on 15 March 1799. (Printing for the use of members of a committee or the House as a whole was a common practice: the Lake v. King case in the 1660s had shown that the courts would regard this as perfectly legitimate, since it was for the internal use of what they treated as a judicial body.) The passage concerned noted that Horne Tooke, Thomas Hardy and John Thelwall had been acquitted on a charge of high treason in 1794, but went on to say that the evidence given in the trials ‘showed beyond a possibility of doubt that the views of these persons and their confederates were in their nature completely hostile to the existing government and constitution of this kingdom, and went directly to the subversion of every established and legitimate authority’. Thomas Erskine, acting again for Tooke argued that the House of Commons had ‘no legal authority to direct or sanction the publication of matter that amounts to a libel on any individual beyond an entry on its own journals, or for the use of the members of the House’. He pointed out that the verdict in R. v. Williams remained in force, ‘notwithstanding several attempts in parliament to get rid of it’.
Lord Chief Justice Kenyon, who had sat on the Abingdon case, presided over this trial too, sitting with two other judges. Kenyon had also presided over many of the treason and sedition trials of the early 1790s (unsympathetically, as far as the defendants were concerned). Though he was friendly with Erskine, who had been his junior counsel, this was perhaps cancelled out by his attitude to Horne Tooke, who had had the better of him in a 1792 trial. He had also presided over the 1789 trial for libel of the publisher John Stockdale for publishing a pamphlet that criticised the House of Commons over the Warren Hastings impeachment, in which Erskine had also acted for the defence, and in which Stockdale was acquitted – a trial which, though not strictly relevant to the question of parliamentary privilege, may have been significant in fuelling the sense of grievance of Stockdale’s son in his battle with the Commons getting on for half a century later.
Kenyon decided against Tooke and for Wright. ‘It is impossible for us to admit’, he said, ‘that the proceeding of either of the Houses of Parliament is a libel’. He rejected the relevance of R. v. Williams, which ‘happened in the worst of times’, and in any case bore ‘no relation to the present case’:
There the publication was a paper of a private individual; and under pretence of the sanction of the House of Commons an individual published: but this is a proceeding by one branch of the legislature, and therefore we cannot inquire into it. I do not say that cases may not be put in which we would not inquire whether or not the House of Commons were justified in any particular measure; if, for instance, they were to send their serjeant at arms to arrest a counsel here who was arguing a case between two individuals, or to grant an injunction to stay the proceedings here in a common action, undoubtedly we should pay no attention to it. But the report in question, being adopted by the House at large, is a proceeding of those who, by the constitution, are the guardians of the liberties of the subject; and we cannot say that any part of that proceeding is a libel.
One of the other judges, Lawrence, made the perfectly reasonable, but in the context extraordinary argument (given that they were talking about the unauthorised publication of the proceedings of a secret committee) that the publication by Wright should be welcomed on the grounds of public utility:
Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of Justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings. The same reasons also apply to the proceedings in parliament: it is of advantage to the public, and even to the legislative bodies, that true accounts of their proceedings should be generally circulated; and they would be deprived of that advantage if no person could publish their proceedings without being punished as a libeller.
From one perspective, it is not particularly surprising that Kenyon decided that Abingdon was not entitled to parliamentary privilege for the publication of his speech, but that Wright should benefit from privilege for reprinting the committee’s report, since these were very different cases. There was, it might reasonably be argued, no malice involved in what Wright had done, whereas there was plenty in Abingdon’s. But Kenyon’s judgment was much more straightforwardly on the basis that Wright had reprinted, without alteration or comment, something that the House of Commons had itself decided to publish, and that it was therefore covered by the original privilege. This, too, seems a reasonable point of view, but given the rather unforgiving other precedents, particularly R. v. Williams, it seems surprising. It is possible that the judgment was at least partly influenced by the attitudes of a conservative bunch of judges to a radical litigant. But it, and the remarks of Lawrence, may have given too much confidence to the House of Commons when it came to adopt the practise of routine publication of its reports in 1835.
R. v. Creevey, 1813
Another case should have given them pause. Thomas Creevey is now known for a gossipy correspondence which placed him at the centre of Whig politics and society in the first thirty or so years of the nineteenth century. He was a man of rather disreputable background (his father was the captain of a slave ship; his mother was of ‘obscure origin’) who managed to insinuate himself into society through native wit and a certain amount of chicanery.
Creevey made a number allegations in the Commons in 1812 about the activities of Robert Kirkpatrick, an inspector of taxes in Liverpool, who was supposed to be a protégé of the prime minister (Spencer Perceval). The speech was reported in the newspapers, though in general terms. Creevy sent a corrected version to The Liverpool Mercury, which named Fitzpatrick (it was published in the paper on 3 April 1812, in its ‘parliamentary compendium’). Fitzpatrick not surprisingly mounted a prosecution for libel, which was heard at the assizes in Lancaster in March 1813. At the Lancaster trial, Creevey argued that it was not a libel, for there had been no malice involved in sending his text to the newspaper to correct an inaccuracy, and secondly, that ‘as privilege of speech in parliament was allowed to every member of parliament, in like manner also he was privileged in publishing a correct account of his speech in parliament’. The judge dismissed these arguments, the latter on the basis of R. v. Abingdon, and a jury found him guilty of libel. Creevey appealed, and the case was heard in the King’s Bench before Lord Chief Justice Ellenborough and three other justices in May. Creevey’s counsel was the brilliant but prickly and unpopular advocate and radical Whig politician (though temporarily out of the House) Henry Brougham and numerous Whig Members of both Houses stood by him at the appeal.
He fared no better than he had at the assizes. Brougham argued that in R. v. Lord Abingdon the basis on which the judge, Lord Kenyon, had decided against Abingdon was that his actions had been malicious, and that a member of parliament ‘had no right to make his speech a vehicle of slander’. Kenyon had ‘emphatically added, that in order to constitute a libel the mind must be in fault, and show a malicious intent to defame’. In Creevey’s case there had been no malicious intent, and Creevey’s publication had been for no other purpose than to correct an inaccurate version of the speech. Ellenborough dismissed the claim: ‘I cannot find anything on which to found even a colour for argument, except what arises from an extravagant construction put on a particular expression of Lord Kenyon in the case of Rex v. Wright’. The court emphatically rubbished the idea that parliamentarians should be free to publish whatever libels they wished to make in parliament. Justice Bayley said that ‘a member of parliament has undoubtedly the privilege for the purpose of producing parliamentary effect to speak in parliament boldly and clearly what he thinks conducive to that end. He may even for that purpose, if he thinks it right, cast imputations in parliament against the character of any individual; and still he will be protected. But if he is to be at liberty to circulate those imputations elsewhere, the evil would be very extensive’. (Creevey later in the House of Commons claimed that Grose said that the speech was also a ‘libel on the late Mr Perceval [who had been assassinated the previous year], and contained disaffection to the state’, and apologised for not passing a longer sentence.) It feels diametrically opposite to the conclusions of Lawrence in R. v. Abingdon.
Creevey was believed to have got off lightly with a fine of £100 (though he had been attracted by the idea of courting the martyrdom of imprisonment). A few weeks later he tried to get the House of Commons worked up about his case. It was the first instance, he claimed, ‘of a member being arraigned out of the House, for words spoken in it’, and he claimed that the privilege of having speeches printed, made use of by many Members, was at stake. The Attorney General told the House that Creevey’s doctrine, that members ‘were authorised to publish whatever they might think proper to say in the House, was repugnant to every principle of law and equity’. (The Times, 26 June 1813) Creevey’s plight seems to have elicited no interest outside of a small circle of radical whigs, his friends.
It seems surprising that in Creevey’s case and in its predecessors, so few parliamentarians were prepared to defend the right to publish what was said in parliament’s debates or reports, without the threat of prosecution for libel. Most of them seemed to accept the argument that was so tendentiously advanced in the Wilkes case that members of parliament should have no more right to libel anyone in print than should ordinary members of the public. It is less surprising that the courts in general should have maintained a relatively consistent line against a defence of parliamentary privilege for libel. There were apparent exceptions: but Pratt’s judgment in the Wilkes case and the verdict in R. v. Wright may both have been influenced by political considerations; and Pratt’s judgment was arguably the reversal of a doubtful element of the verdict in the Seven Bishops’ trial. But a quarter of a century after Creevey’s case, parliament started to defend, very vigorously, its right to commit libel, even against a very strong response from the courts. Which is the next blog.
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