In the House of Lords, where there is no Speaker to curtail a lengthy or irrelevant speech, any peer may propose that the noble lord who is on his legs "be no longer heard" – a disagreeable but effective way of informing a bore of his prolixity.250 This method was unsuccessfully tried in the Commons in 1880. O'Donnell had put down a question asking whether M. Challemel Lacour, the prospective French Ambassador at the Court of St. James's, had, "as one of the Prefects of the Provisional Government of September 4, 1870, ordered the massacre of Colonel Latour's battalion, and had been fined £3000 by a Court of Justice for plundering a convent." Gladstone moved that the honourable member "be no longer heard;" but the Speaker, on being appealed to, stated that this was an unusual course, which had certainly not been adopted for at least two hundred years. A "scene" ensued, and finally O'Donnell was induced to put down the question again for a later date. Before this day arrived, however, the Speaker tactfully managed to suppress the question altogether, as being "beyond the cognisance of the House or the Queen's Government."
Occasional efforts have been made to stem the flow of parliamentary eloquence in the Commons, but without much success. The late Sir Carne Rasch tried for years to shorten speeches, but in vain. Mr. Hogan sought to introduce the New Zealand scheme, whereby the Speaker rings a bell when any member has spoken for twenty minutes; but though Mr. Balfour declared that twenty minutes erred on the side of generosity, nothing came of this suggestion. In spite of a good deal of unnecessary talking, the House of Commons gets through a lot of work, though there is no doubt that, as Bright said, more business could be done if so much time were not wasted in unprofitable eloquence.251 Dr. Johnson, visiting a musical family of his acquaintance, suggested that they should all perform together. "There will then," he explained, "be more noise, but it will be sooner over." Similar suggestions have been made with regard to the House of Commons, but the question of stifling parliamentary loquacity remains unsolved.
When such loquacity was deliberately employed to delay business, obstruction took various forms, of which the favourite one a few years ago consisted of motions to adjourn the debate or adjourn the House. Sheridan once made this motion nineteen successive times, until members were so tired of tramping through the lobbies that they gave in and went home.252 In 1831, on July 12th, the opponents of the Reform Bill saw that their only hope lay in retarding the business of the House. They set about to force a division on repeated motions for adjournment, and it was not until 7.30 a.m. of the following day that the Commons at length adjourned. Sir Charles Wetherell, who led the Opposition on this occasion, came out of the House to find that it was raining hard. "By God!" said he, "if I'd known this, they should have had a few more divisions!"253
In 1833, and again ten years later, the Irish party resisted two Bills by this means, on the latter occasion calling for no less than forty-four divisions. And when the Copyright Bill of 1839 was being debated, a minority of nine members compelled one hundred and twenty-seven of their colleagues to divide sixteen times.
There is, as Gladstone said, no art or science which has made such advance in modern times as has that of parliamentary obstruction. Gladstone himself resolutely and systematically obstructed the passage of the Divorce Bill, as Sir Robert Peel before him had obstructed Lord Grey's Reform Bill. These statesmen, however, employed a recognised form of opposition to some particular measure. It was left for the Irish party to devise a system of regular opposition to the conduct of any parliamentary business whatsoever.
Parnell's knowledge of the rules of debate was extensive and peculiar. He himself acted upon the advice which he once gave to a new member when he told him that the best way to learn the regulations of the House was by breaking them. It was he who originated the idea of employing what he called "the sacred right of obstruction" as a protest against the alleged Government neglect of Irish grievances. He sought by this means to show that, though his party was not powerful enough to carry through its own work properly, it was sufficiently strong to prevent the English Government from doing any work at all. In this way he no doubt thought to carry out the last wishes of Grattan, and to "keep knocking at the Union."
The forms of the House of Commons, as Sir George Cornwall Lewis has said, were avowedly contrived for the protection of minorities; and they are so effectual for their purpose as frequently to defeat the will of the great body of the House, and enable a few members to resist, at least for a time, a measure desired by the majority.254 The Irish have, of course, always been dissatisfied. If they had happened to be in the wilderness with Moses, as Bright once observed, they would probably have complained of the Ten Commandments as a harassing piece of legislation – and not altogether without justification. But in 1874, when they adopted the attitude of antagonism to the transaction of all business, obstruction in such a form as this was a novelty, and their more constitutionally-minded leader, Butt, repudiated Parnell and his methods. The latter was not to be moved from his purpose, however, and with half a dozen intrepid and obstinate followers continued the practice of an organized plan of obstruction, of which the only flattering thing that can be said is that it was for a long time completely successful.
Parnell himself deliberately expressed his satisfaction in thwarting the Government and preventing the progress of parliamentary business. He gloried in his offence, thinking very probably that England's difficulty was Ireland's opportunity. On sixty-nine occasions in 1877, when the House of Commons was forced to divide, the minorities never consisted of more than eleven members, and in one hundred divisions they did not exceed twenty-one. Parnell addressed the House five hundred times in the session of 1879, constantly repeating the same arguments, raising points which had already been ruled out of order, making a variety of frivolous objections, and showing in a hundred ways that his evident desire was merely to waste the time of Parliament.
Owing to obstructive Irish tactics, the Land Act of 1881 required no less than fifty-eight sittings before it could be passed. In the same year the climax of obstruction was reached, and it became obvious that some measures must be taken to prevent the continuation of such a state of affairs. On January 31, which was a Monday, the House of Commons met at 4.30 p.m. and sat without interval until 9.30 a.m. on the following Wednesday. But for the intervention of the Chair, the sitting might have been prolonged indefinitely. Fortunately, Speaker Brand was a strong man, and had privately determined to put a stop to a condition of things which was bringing the House into contempt and threatening the complete breakdown of all legislative business.
On resuming the Chair on the Wednesday morning, the Speaker rose and addressed the House in a carefully prepared speech. He began by expressing his unqualified disapproval of the continual obstruction of a stubborn and inconsiderable minority, whereby the ordinary rules of procedure had been rendered ineffective, and the dignity of the House endangered. Acting on his own responsibility, he declared that a new course was imperatively demanded. He declined therefore to call upon any more members to speak, and proceeded to "put the question," relying upon the House to support him in this unusual act.
The Speaker had accurately gauged the "sense of the House";255 his solution of the difficulty was loudly applauded, save of course upon the Irish benches, and, after a sitting that had lasted for over forty-one consecutive hours, weary members were at last enabled to enjoy a well-earned repose.
Shortly after this memorable scene, a new set of rules was framed, restricting debate on all dilatory motions, and preventing any member from making them more than once. The authority of the Speaker also was increased, and it was made optional for him to put the question forthwith, if he thought the rules were being abused. He was also endowed with the power of at any time silencing an unruly or obstructive member.
In 1882, Gladstone proposed an alteration of the Procedure Regulations, which allowed the Speaker or Chairman, when a subject had been adequately discussed, and it was evidently the sense of the House that the question be put, so to inform the House; and, if a motion to this effect was put and carried, supported by more than two hundred members, or supported by one hundred and opposed by less than forty, the question was to be put forthwith. This "Closure" rule was amended six years later, when it was resolved that, after a question had been proposed, any member could move that "the question be now put," and, with the Speaker's approval, this motion might be put without debate, provided that in the division not less than one hundred members voted in its support.
Still more stringent regulations have since been made to thwart the obstructive tendencies of a certain section of every Opposition. By a recent Standing Order, the end of a debate may be fixed by resolution of the House for a certain hour and date, and, if the subject is not disposed of by that time, the undiscussed remainder must be decided by a vote upon which there can be no debate. This is known as the "guillotine" or "closure by compartments," and has been commented on adversely by all minorities and sedulously practised by every Government since its inception.
In spite, however, of the many efforts which have been made to accelerate business, the parliamentary machine moves but slowly, and the time spent in discussing any measure to which there is active, sincere, and persistent opposition shows no signs of diminishing in length. Thus, while the Home Rule Bill of 1893 required 180 divisions, the Education Bill of 1902 required 295; and over the Finance Bill of 1909 Parliament spent something like 73 days (or 740 hours) and divided no less than 420 times.
CHAPTER X
PARLIAMENTARY PRIVILEGE AND PUNISHMENT
Parliament has ever been most tenacious of its historic and traditionary rights and privileges. Of these, freedom of speech and freedom from arrest may be considered the most important. The right of personal access to the Crown is claimed by peers, any one of whom may demand a private audience with the sovereign, and, though the Commons are not granted a similar privilege, it is permissible for them to accompany their Speaker when he presents an address to the King, and to wear ordinary dress on such an occasion.
In olden days peers enjoyed other indulgences denied to their humbler brethren. They were, for instance, permitted to kill deer in the King's forests whenever, in obedience to a royal summons, they journeyed to or from the sovereign. At such times the bag was limited to two deer, and these might only be slain in the presence of the King's Forester. If that official were not at hand, the sporting peer was enjoined to blow several loud blasts upon his hunting-horn before pursuing his quarry to the death.256 Peers were further allowed "benefit of clergy," in the good old days, for such crimes as highway robbery, horse-stealing and house-breaking, but only for a first offence. If they took up burglary as a hobby, or if the robbery of churches became with them a daily habit, they could no longer escape from the consequences of their misdeeds, and were haled to prison just as though they had been mere ordinary mortals. "Benefit of clergy" was a privilege which was repealed by Act of Parliament in 1801, and a peer to-day cannot steal a single gold watch with impunity.
Exemption from arrest on a civil process during the session, or for forty days before and after, is a privilege which members of the House of Commons as well as the Lords have always enjoyed.257 It extended to their estates until 1857, and to their servants until 1892. This immunity does not, however, extend to breaches of the criminal law, nor can it be claimed in the case of an indictable offence or of contempt of court, its original object being merely to secure freedom of arrival and attendance. The Speaker of the Commons, Thomas Thorpe, who was summoned in Henry VI.'s time for carrying away certain goods and chattels from the Bishop of Durham's Palace, was fined £1000, and committed to the Fleet until this sum should be paid. The question of privilege was raised, but the House of Lords decided that the culprit must remain in prison, and the Commons were directed to elect another Speaker.
In the early days of Parliament, privilege from arrest was generally enforced by a resolution of the House or by a Chancery writ, though there is at least one instance of a member being released without any such formality. This occurred in the case of a member named Ferrars, who had been arrested for debt by the Sheriff of London in 1543. The Sergeant-at-Arms who went to demand his release was illtreated, and sent back empty-handed. The House thereupon summoned the sheriff to the Bar, and with him the creditor who had sued Ferrars, and committed both to prison.
In 1575 the privilege was extended, the servants of members of the House of Commons being included within the pale of its protection. This naturally led to many abuses, culminating in the case of the notorious Colonel Wanklyn. This member gave a signed "protection" to a wealthy friend whom he falsely named as his servant in order to enable him to escape the payment of a debt which he owed to his own wife. The fraud being made public, the culprit was expelled from the House, and went away weeping bitterly, "to the scandal of his brother officers."258 In the same year a man named Smalley, the servant of Arthur Hall, member for Grantham, was arrested for debt and released by the Speaker's order. It was afterwards discovered that he had arranged his arrest so as to elude his financial liabilities, and the indignant House ordered him to be imprisoned and fined £100.259 Further discredit was cast upon one of the ancient privileges of Parliament by another member named Benson, who was found guilty of selling "protections" at sixteen shillings apiece, and was turned out of the House.
If the Commons were justly severe in their treatment of members who abused this particular privilege, they punished with even greater severity any unfortunate persons who attempted to violate it. In 1584 an official of the mighty Star Chamber was committed to the Tower for daring to serve a subpœna on a member of Parliament. At the beginning of the next century, two officers who had arrested a member's servant were condemned to ride together upon a single horse, back to back, through the streets of London. In this insecure and undignified position they were taken from Westminster to the Exchange, wearing upon their breasts a placard inscribed with their offence, an awful example to all who would dream of laying hands on the sacred persons of parliamentarians or their dependents.
The immunity which members had hitherto enjoyed was slightly modified in 1700, when an Act was passed permitting civil suits to be commenced against them after a dissolution or prorogation, or during any adjournment of more than fourteen days. Later on, in George III.'s reign, their privileges were still further curtailed, their persons alone being held sacred, and that for a period of only forty days before or after the meeting of Parliament. Use was still made of this privilege as a shield from the power of the law, and as late as 1807 there are instances of the unscrupulous purchase of seats in the Commons for the sole purpose of obtaining release from prison or escaping the payment of debt.
To this day members of Parliament are safe from arrest within the precincts of the Palace of Westminster. Irish members who had been convicted under the Coercion Act, in the palmy days of the Land League, found in the House of Commons a useful if only temporary sanctuary. Dr. Tanner took his seat there at a time when a warrant for his arrest had been issued, and it was not until the adjournment of the House and the return to his hotel of this member, so badly "wanted by the police," that he could be lawfully apprehended.
The jealous care with which Parliament guarded its rights in olden days often threatened to bring the very name of privilege into contempt. The Commons especially acquired the pernicious habit of voting that whatsoever displeased them was an insult to Parliament, requiring instant and drastic punishment. Books or sermons which criticized or reflected upon the doings of either House were condemned wholesale, confiscated, and publicly burnt by the common hangman; authors or preachers were imprisoned and otherwise penalized. "The Parliament-men are as great Princes as any in the World," says Selden, "when whatsoever they please is privilege of Parliament; no man must know the number of their privileges, and whatsoever they dislike is breach of privilege."260
Impeachment, imprisonment, fines, confiscation of property, or committal to the Tower, were among the penalties meted out with a lavish hand to all who gave offence to the Commons. In 1624, Dr. Harrys, vicar of Blechingly, was brought to the bar of the Commons for interfering at elections, and compelled to confess his guilt, and afterwards to apologise to his parishioners. A Welsh judge named Jenkins was summoned before the Long Parliament for having called the House of Commons a den of thieves, and, on refusing to "bow himself in this house of Rimmon," was sentenced to death.
The most trivial faults, the most innocent acts, were from time to time voted contempts of Parliament, and the offenders chastised with a barbarity which was out of all proportion to the nature of their misdeeds. So harmless an offence as crowding or jostling against a member of Parliament was at one time considered a crime. In the days when the great Arthur Onslow occupied the Chair of the House of Commons, it was his custom to traverse Westminster Hall on his way to the House, saluting the Judges as he passed. An unfortunate man who accidentally blocked the Speaker's path on one occasion was instantly ordered into custody.261
Poaching the game of a member of Parliament was also adjudged a misdemeanour worthy of severe retribution. A poacher who trespassed on the fishing rights of Admiral Griffiths, M.P., in 1759, was reprimanded on his knees at the bar of the Commons.262
The presentation of fraudulent petitions has always been regarded as a breach of parliamentary privilege; and, in 1887, a man named Bidmead, who presented a petition which was found to be full of false signatures, was brought to the bar and severely reprimanded. This process of haling an offender to the bar to receive the censure of the House was an impressive one, calculated to strike fear into the boldest heart. The culprit was brought in, in the custody of the Sergeant-at-Arms, and compelled to kneel at the bar, where the Speaker sentenced him in his severest tones to such penalties as the House deemed sufficient to expiate his crime. One wretched prisoner was so alarmed that he had a fit, and was carried out in an unconscious condition.
The rule requiring an offender to kneel was not finally repealed until the middle of the eighteenth century. In 1751 an attorney named Crowle was reprimanded on his knees for misconduct of some kind or other at an election. On rising to his feet Mr. Crowle carefully wiped the knees of his trousers, remarking contemptuously that he had never before been in so dirty a house.263 In this same year Alexander Murray, brother of the Jacobite Lord Elibank, was summoned for obstructing the High Bailiff of Westminster at election time. He resolutely declined to kneel when brought to the Commons bar, nor could the threats or entreaties of the Sergeant-at-Arms prevail upon him to conform to the rules of the House in this respect. "I never kneel but to God," he said. "When I have committed a crime I kneel to God for pardon, but, knowing my own innocence, I can kneel to no one else." As a punishment for his obstinacy, Murray was committed to Newgate, and remained there until the prorogation of Parliament. The close of the session operated as his release, and he was acclaimed in triumph by the City populace. When Parliament met again he was once more committed, but fled abroad, and so escaped further imprisonment.
This ceremony of enforced kneeling was a humiliation repulsive to many. Windham told Fanny Burney that the sight of Warren Hastings on his knees at the bar was so repugnant to his feelings that he looked the other way to avoid seeing the degradation of the impeached statesman. "It hurt me," he says, "and I wished it dispensed with."264 This wish soon became universal, and the practice was discontinued in 1772, Baldwin, the printer of the "St. James's Chronicle," who was reprimanded for publishing a report of the parliamentary proceedings, being the last man to kneel at the bar of the House.
When a member of Parliament incurs the displeasure of the House its censure may be visited upon him in various ways, either by a reprimand, or by fine, or by committal to prison. The first instance of the Commons punishing one of their own number occurs in 1547, when a member named Storie was arrested by the Sergeant-at-Arms for speaking disrespectfully of the Duke of Somerset, and was confined to the Tower. The House of Commons has never allowed its members to reflect upon the conduct of those in high places. It also forbids any criticism of a Resolution of the House, unless the critical member intends to conclude with a motion for rescinding it. Eight years after the committal of Storie, another member, Dr. Parry by name, was brought to the bar for speaking in the House against a Bill that had already passed its third reading, saying that it was "full of confiscations, blood, danger, despair, and terror to the English subjects of this realm, their brothers, uncles, and kinsfolk."265 Dr. Parry absolutely declined to give his reasons for holding this view, nor would he deign to explain why the Bill should cause his uncles to become desperate and terrorstricken. He was therefore committed to the Tower, and expelled from the House. Later on an accusation of treason was brought against him, and a motion made (but, let us hope, not carried) that he be executed. In 1581, another member, Arthur Hall, was fined and imprisoned in the Tower for publishing a book of a slanderous character.
When the House of Commons punished in those days it certainly never erred on the side of leniency. A Roman Catholic member named Floyd, who had made use of insulting expressions with reference to the daughter of James I., was found guilty of gross breach of privilege. He was sentenced to be degraded, branded, whipped, fined £1000, and to stand twice in the pillory. After this, whatever was left of him was to be imprisoned for life. The pillory was evidently a favourite punishment for recalcitrant members, and as late as 1727 we find a legislator named Ward suffering this unpleasant penalty in addition to expulsion from the House.266
In James I.'s reign a certain Sir Giles Mompesson, member of Parliament, was accused of "being a Monopolist." For this crime he was turned out of the House, perpetually outlawed, excepted from all general pardons, bereft of his goods, imprisoned for life, and, last of all, sentenced to be "for ever held an infamous person."267 Another member was sent to the Tower for "speaking out of season," an offence which is fortunately no longer considered particularly heinous, or perhaps few members would be at liberty to-day.
In 1642 Parliament appears to have been especially pitiless, dispensing fines and imprisonments right and left upon any one who displeased it. Sir Edward Dering was impeached for promoting a petition from the county of Kent, and the petition itself was ordered to be burnt at the hands of the common hangman. Sir Ralph Hopton was imprisoned in the Tower for saying in the House that his fellow-members seemed to ground their views of the King's apostacy upon evidence insufficient to convict a horse-thief; and a wretched tradesman named Sandeford, who cursed Parliament and all its works, was fined a hundred marks, pilloried, whipped, and sentenced to life-long confinement in a House of Correction. So assertive of their power and so jealous of their privileges were the Commons at this time that they even made an order to issue a warrant for the apprehension of all such persons as one of their members, Sir Walter Erie, should name.268
Peers and prelates were no safer than the humbler members from the vindictive spirit of Parliament, and any breach of its privileges on their part brought instant punishment. In 1603 the Bishop of Bristol published a book which was considered by Parliament to be most offensive. At a conference of both Houses he was sternly rebuked "for presuming to see more than a Parliament could," when he at once recanted, withdrew his obnoxious presumptions, and declared, "first, that he had erred; secondly, that he was sorry for it; and, thirdly, that if it were to do again, he would not do it."269 Only on these abject terms could he expiate his offence. A hundred years later, in 1712, a volume of sermons written by the Bishop of St. Asaph, deploring the terms of the peace with France and Spain, was condemned to be burnt in Palace Yard.
The Sergeant-at-Arms is the official entrusted with the duty of enforcing the penal decisions of the House of Commons. All warrants issued by the House are executed by him. He brings witnesses and culprits to the bar, sees that members and strangers do not infringe its resolutions, and has the custody of such persons as may be committed to his charge. The doorkeepers, messengers, and police employed in the Commons are under his control, as are the buildings themselves while Parliament is sitting. As an officer of the Crown, he may be summoned to attend upon the sovereign on such occasions as the opening of Parliament, when the Deputy Sergeant-at-Arms takes his place as the personal escort of the Speaker. Like his colleagues, the Sergeant used formerly to eke out a precarious living upon fees, and received all or a part of the fines inflicted upon members for absence or unpunctuality. To-day, however, he enjoys a regular salary, and an official residence.270
Only once since the attempt of Colonel Pride to purge the House have representatives of the law traversed the bar of the Commons. The Palace of Westminster, within and without, is guarded by members of the Metropolitan Police, but they studiously refrain from trespassing upon the sacred ground that lies within the bar of either House. During the Speakership of Mr. Gully, however, in 1901, several Irish members declined to leave the House when ordered to do so for a division, and resisted the Sergeant-at-Arms and his myrmidons. Stout police-constables were therefore summoned, and bore the unwilling members struggling to the door in that kindly but determined grasp which, as Suffragettes have since learnt by experience, is one of the chief charms of the A Division.
The right of the Houses of Parliament to regulate their own internal concerns has always been admitted. In Henry VI.'s reign the Lord Chief Justice informed the House of Lords that the High Court of Parliament "is so high and mighty in its nature that it may make law, and that that is law it may make no law, and the determination and knowledge of that privilege belongs to the Lords of the Parliament, and not to the Justices."271 Courts of law have never interfered with anything that took place in Parliament unless it were of an essentially criminal character. Parliament, however, has not always shown the same consideration for courts of law. In 1703, a man named Ashby brought an action against the constables of Aylesbury for refusing to record his vote at an election. The Commons thereupon declared it a gross breach of privilege that any court other than themselves should presume to try a case that had any reference to an election, and proceeded to take into custody everybody concerned in the affair. The Speaker went in person to the Court of Queen's Bench to summon the Lord Chief Justice to attend upon the Commons and explain the law's unjustifiable interposition. For once, however, the representative of Parliament was forced to beat an undignified retreat. Old Lord Chief Justice Holt was a quick-tempered man, and not at all awed by the presence of Speaker Smith. "If you do not depart from this court," he said to him in his sternest voice, "I will commit you, though you have the whole House of Commons in your belly!"
This was but one example of the numerous collisions between Parliament and the law, resulting from the former's rigid insistence upon bygone privileges, and the difficulty of settling which questions should be left to the arbitrament of either authority. If matters were left to the decision of the Commons, it is clear that everything would probably be brought within the scope of privilege; if to courts of law, all privilege would possibly be abolished. Some thought the former alternative was the least to be feared. "While men are but men," said Lord Jeffrey, "we must be at the mercy of a fallible and irresponsible despotism at best; and if we have to choose, as in an open question, few would hesitate to say that they would rather have the House of Commons for a despot than the courts of law."272 But the matter became ridiculous when Parliament insisted on interfering in questions which it had clearly no right to decide. In 1721, for instance, the House of Commons committed the proprietors of a paper called "Mist's Journal" to Newgate for publishing an article favouring the restoration of the Pretender. This could scarcely be considered a breach of privilege, but the House thought itself empowered to deal with all political offenders. Since that time no one has been committed, except for a distinct breach of privilege, or for contempt of Parliament. The latter term, however, embraces the most trivial offences. In 1827, a stranger who was visiting the House of Lords left his umbrella in the cloak-room, by order of the attendant. On returning to claim his property at the end of the sitting, he found that his umbrella – following the universal fashion of that elusive article – had disappeared. He proceeded to bring an action against the doorkeeper, and was awarded damages amounting to £1 0s. 4d. Lord Chancellor Eldon thereupon summoned him to the bar of the Lords, and forced him, on pain of imprisonment, to refund the value of his umbrella and apologise. Four years later, the printer of "The Times" was fined £100 and sent to Newgate for having dared to call the Earl of Limerick "a thing with human pretensions."