§ The Sergeant-at-Arms announced that Mr. Thomas Howard, jun., was in attendance, who was placed at the bar.
§ In answer to questions put by the Speaker and the Attorney-general, he said that his name was Thomas Howard, and that he was a clerk to his father, who was an attorney, residing in Norfolk-street, Strand. He had been engaged in several actions, on the part of his father, and had served three copies of writs of one original writ on Messrs. Hansard, at the suit of John Joseph Stockdale. He had acted by his father's orders, and had gone to him in prison daily, and received his instructions. He had never seen Stock-dale, nor did he know what the former cause of action was. He did not know the circumstances, but he could give a very near guess. Knew what the cause of action was in the present case.
§ By Mr. Godson—Had been articled to his father for three years.
§ By Mr. O'Connell—Knew that his father was in custody for a breach of the privileges of the House of Commons.
§ By Mr. Godson—It was part of the duty of his office to obey the lawful commands of his father.
§ Mr. Howard ordered to withdraw.
§ The Attorney-Generalsaid, that it was clear that this young gentleman was continuing the action brought by his father as the attorney of Stockdale against Messrs. Hansard, the printers of that House, and that he knew that his father had been confined in Newgate for a breach of the privileges of the House in bringing a former action for the same cause. Now, the House must either give up its powers altogether, or interpose at once, because if an attorney's clerk could carry on an action in his master's name, and remain at liberty, the object of the House would be defeated. The hon. 347 Member for Kidderminster had said, that this young man was bound to obey all the lawful commands of his master. That no doubt was so, but the commands which he had obeyed were not lawful but in breach of the privileges of the House, which were part of the law of the land. He was, therefore, under the necessity of moving that Thomas Howard, jun., having been concerned in conducting the action of Stockdale against Messrs. Hansard, after the prosecution of the said action had been resolved by this House to be a breach of their privileges, has been guilty of a contempt, and of a high breach of the privileges of the House.
§ Sir E. Sugdenhad heard with great surprise the proposition of his hon. and learned Friend, and he was sure that after the speech that they had just heard, the House was not prepared to say whether the action that was brought, and for which they were asked to declare the person just called to the bar guilty of a breach of privileges, was the second, the third, the fourth, or the fifth action. The young man was called to the bar for proceeding in a new action, and he was questioned by the Attorney-general on the subject, and his answers showed that he was, intentionally, freed from all blame in this action, and in consequence the House would have been obliged to discharge him from further attendance. The Attorney-general, however, then proceeded to question him respecting, not the action for which he was called to the bar, but the action for which his father had been committed to custody. No farther question was asked of him than to elicit from him that he was acquainted with the nature of that action. He was greatly surprised, and he was sure that the House must have been so, to have found this young man called upon to answer in an action in which damages were levied and paid. The House had no information as to the nature of any particular action on which these parties had been summoned to-night. The Attorney-general, however, proposed that they should proceed against this boy, though he merely executed a duty which he was bound by his articles to execute. This youth no-doubt thought he might be excused for acting in his particular situation, when he might have thought that the cause of action had been confirmed by the full court of the Court of Queen's Bench. It appeared to 348 him as if a trap had been laid to catch this boy in his answers in reference to an action for which he was not called to the bar. It therefore appeared that he was called there for one purpose, and it was proposed to punish him for something else. Perhaps while on this part of the subject he might be allowed to make some observations on the cases referred to last night by the noble Lord who had made some communications on matters altogether distinct from the subject before the House. The question was not as to whether they possessed the privilege of publishing these papers, but it was how the privilege, if it existed, was to be enforced. For his own part, he thought that the House had the right to publish that particular paper, but he did not think that the course that they were pursuing was the just mode of vindicating or defending their privileges. The noble Lord had stated that he (Sir E. Sugden), in defence of his opinion, had referred to cases that had occurred in the Parliament of Charles 1st and Charles 2nd; the noble Lord said that in some of these Parliaments the most important cases had been decided with reference to their privileges, but that there were many things done by the House of Commons of those days of which he could not approve. He agreed with the noble Lord that there were many things done both by the Long Parliament and by the Parliament of Charles 2nd, which were not worthy of commendation; he, therefore, went so far along with the noble Lord, but he also went further, and thought that their conduct in these cases of privilege was not worthy of such commendation as had been bestowed. One of those cases was that of an ancestor of his noble Friend near him (Lord Eliot), and who at the time, was Member for Cornwall; he meant Sir John Eliot, and eight other Members. The other case was that of the Speaker, Sir W. Williams, in the time of Charles 2nd, and both cases involved the question of liberty of speech in Parliament. He would show, that the noble Lord was wrong in the view which he took of both cases. In the case of Sir John Eliot, the information was exhibited in the King's Bench against him and the other Members, for acts done in that House, and they pleaded they ought not to be punished in that court, or any other except in Parliament. The judges, however, decided against 349 them, and Sir John Eliot, as the alleged greatest offender and the ringleader, was fined 2,000l., and the others were amerced in smaller fines. The House of Commons resolved that the proceedings were illegal, and that the information in the Court of King's Bench for matters done in Parliament was against the law and privilege of Parliament, and a gross contempt and breach of privilege. But how were these proceedings respecting the infringement of their privileges got rid of? First of all, there was a joint resolution of that House and of the House of Lords on the subject; and then there was a writ of error issued by the House of Lords, reversing the judgment. This, be it recollected, was done, not by acting against the law, but by acting with the law, and by appealing to the supreme tribunal, the House of Lords, for the reversal of the proceedings in the case. The second case was still stronger, namely, the proceedings against Speaker Williams, for they had never been reversed. The decision, however, was quashed in effect, and upset by the Bill of Rights. In that act, among other things, it was declared that it was utterly contrary to the laws and statutes and freedom of the realm, and to the privileges of Parliament, to proceed by prosecutions in the Court of King's Bench, for matters and causes cognizable only in Parliament. The Bill of Rights also declared that the freedom of speech and debates in proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. This, therefore, might be taken to meet the case of Williams, and the declaration in the Bill of Rights might be assumed to set the matter at rest. He had cited these two cases in order to show that the proceedings taken in them, were very different from the system which had been pursued by the noble Lord in this case. He would only say one word as to the Convention Parliament. That Parliament called before it Pemberton and Jones, two of the former judges of the Court of King's Bench, for acts done by them seven years before; and after hearing them, the House of Commons resolved, that the judgment of these judges in those cases, for matters done by order of the House of Commons, and against Mr. Speaker Williams, is illegal, and against the freedom of Parliament, and that a bill be brought in to reverse the said judgment. This 350 resolution, however, of the Convention Parliament, had been regarded by all the judges, and all the lawyers since that time, that although they had settled the point, the proceeding was altogether illegal. Therefore, when the noble Lord referred to this case as being in point, he took up a dangerous ground. Again, in the case of Ashby and White, all the steps that were taken by the House, were most objectionable, and the House in the result was signally defeated in the matter, The case which he referred to last night, and which had been commented upon by the noble Lord, did not occur in the time of Charles 1st. or Charles 2nd., but in the time of the Commonwealth. The case of Naylor occurred at a time when the House endeavoured to arrogate to itself the highest privileges, and had subverted the authority of the other branches of the Legislature. It certainly was not exactly a case of privilege, but it showed that when a representative or other popular assembly had such power, it did not know how to proceed without inflicting great injustice. But he would read the resolution which was passed by that House of Commons on the subject of James Naylor, the Quaker's prophet, as he was called. The resolution was,
That James Naylor be set on the pillory, with his head in the pillory, in the New Palace, Westminster, during the space of two hours, on Thursday next, and shall be whipped by the hangman through the streets from Westminster to the Old Exchange, London, and there likewise be set upon the pillory, with his head in the pillory, for the space of two hours, between the hours of eleven and one on Saturday next, in each of the said places, wearing a paper containing an inscription of his crimes; and that at the Old Exchange his tongue shall be bored through with a hot iron, and that he be then also stigmatised on the forehead with the letter B. That he be afterwards sent to Bristol, and conveyed into and through the said city, on a horse bare ridged, with his face backward, and there also publicly whipped the next market-day after he comes thither; that from thence he be committed to prison in Bridewell, London, and there restrained from the society of all people, and kept to hard labour till he shall be released by Parliament; and during that time be debarred from the use of pen, ink, and paper, and shall have no relief but what he earns by his daily labour.This was at a time when they had an attorney-general who was not so mild and considerate as the attorney-general of the present day, for the then holder of that 351 office, when the question was under consideration as to the amount of punishment to be adjudged to him by the House, recommended that Naylor should be put to death, and stated that if the House did not possess the power of putting Naylor to death already, that they should pass an act to hang him. A resolution was proposed to this effect, but it was not agreed to by the House. From what then took place, it appeared that if Cromwell had not interfered in this case of Naylor, he would have been punished with unequalled severity. The proceedings in this case, showed how necessary it was that that House, as other like bodies, should be controlled in the exercise of power; for, if the power existed, it might happen at any time that it would be abused in a similar manner. It showed how dangerous it was to entrust more power to a popular assembly than was absolutely necessary for the exercise of its functions. To return to the question immediately before the House, he did not think that it would tend to secure their privileges, or to add to their reputation, to sanction the resolution just moved by the Attorney-general, and he therefore hoped that the noble Lord would not press the resolution against the youth who had been called to the bar, for acting under the directions of his father. If, however, he did so, he should feel it to be his duty to oppose it to the uttermost.
§ The Attorney-Generalsaid, the right hon. and learned Gentleman had entirely mistaken the case. The question which he had put to the person at the bar related to the fourth action, and with that action that person acknowledged that he had proceeded, although he knew that his father had been committed for a breach of privilege for commencing the same. It was for the fourth action that the father had been committed, and it was for following up that action that the son was now called to account. The right hon. Baronet might have taken another opportunity of entering into the question of privilege.
§ Sir E. Knatchbullwas at a loss, even now, to understand, with any degree of certainty, to which action the present resolution had reference. Was it the fifth or the fourth action upon which the House was about to proceed? If the fifth action had not been brought, would the present proceedings have been taken? He thought it was by no means fair to deal with the 352 son of the attorney in this manner. He supposed that the Attorney-general would not venture to proceed against that person except upon clear and intelligible grounds. The hon. and learned Gentleman said, that he proceeded against the father for the fourth action; but he had not taken the trouble to ascertain whether the son had been acting in the father's name before or since the committal of the father. No inquiry had been instituted to settle that point; and he, therefore, thought that they would not improperly and unjustly, and without due consideration for the character and dignity of the House, if they committed the son under such circumstances. He submitted this point to the noble Lord and the hon. and learned Gentleman, and hoped it would receive attention. He should be sorry to use any harsh expressions on the present occasion, but he could scarcely forbear repeating the complaint that had been made, that no courtesy had been shown to the minority on this question. He thought there had been a want of consideration. The privileges of the House had, or they had not, been violated. That being the question, and the minority exceeding 100, he did think that some further consideration might have been shown towards so large a number of Members, and that at least as to consequences, some greater respect should have been paid to their opinion.
Mr. O'Connellthought the majority had been treated with very little courtesy, for they had been compelled to listen to the reiteration of the same arguments from the minority, who were still unyielding, very conscientiously, no doubt, to what appeared to be the unanimous opinion of an overwhelming majority of the House. The right hon. Baronet appeared to have fallen into mistake as to the nature of the motion; it was not at present for commitment. The motion was to declare whether or not the person who had been called before the bar of the House was guilty of a breach of privilege. For his own part, he (Mr. O'Connell) should be sorry to vote for his commitment until he had ascertained that the House had declared that he had been guilty of a breach of privilege; and then, if called before the bar, and informed of that decision of the House, he should hold out the least hope that he would not continue to prosecute the action, he would not press for his commitment. There could not be the slightest doubt that the 353 son had followed up the fourth action commenced by the father, for he had put that question to him, and asked him if he had proceeded with the fourth action after he was aware that his father was in custody for a breach of privilege, and he answered in the affirmative. Could the House proceed against the sheriff hereafter, if they allowed a person to go free who, with a knowledge that his father had been committed for a breach of privilege in commencing an action, nevertheless continued to carry it on? Talk of traps, indeed! He thought that would be laying a trap for the sheriffs, because they would wilfully allow an action to proceed on which they would afterwards turn round upon the sheriffs, whom they ought to favour as much as they possibly could consistently with their privileges. It was not fair to put the sheriffs in jeopardy. He believed that there was not that desire and appetite amongst the majority for sending people to gaol which hon. Gentlemen opposite supposed to be in existence. The right hon. Baronet seemed to put the question into a new phrase, and to make it more difficult at every step. He had alluded to the case of Naylor, by way of making the House of Commons appear cruel and tyrannical. But he utterly denied that the House of Commons had acted in the way described. It was not the House of Commons, but an assembly called from the three kingdoms by Cromwell, by virtue of his writs, and under the superintendence of his major-general, without certainly the form of elections or election petitions, for the qualification to sit was decided by a file of Cromwell's grenadiers, who were stationed in the lobby, and they let no man in who had not the entrée from Cromwell. That was the assembly which had been that night called the House of Commons. They were but a set of miscreants, whose fanaticism went to such an extent, that the sentence which the right hon. and learned Gentleman had read was but the milder sentence of the majority, the minority being for taking off the man's head at once. It did not become the hon. and learned Gentleman to taunt the House with the acts of such an assembly. He might as well taunt the House with the doings of the National Convention of France, for the one was as much the House of Commons as the other. If the young man had not committed a breach of privilege, it would be difficult to 354 define what a breach of privilege was. Would not the House place itself in a dilemma if, after committing one person for commencing an action, they should let the other who carried on the suit go free? It would be stultifying the House to act in that manner.
Colonel Woodsaid, he was rather unwilling to take a part in the present discussion, but he could not help saying that, notwithstanding all the hon. and learned Member for Dublin had said, he thought they had summoned the lad to their bar to answer for one offence, and now they were going to punish him for another. It was in consequence of the petition from the Messrs. Hansard which the noble Lord had presented, complaining that a new action had been brought against them, he believed the fifth or sixth action, that the present proceedings had been taken by the House. The youth who had made his appearance at the bar had answered the questions put to him in a satisfactory manner; but he had certainly been entrapped into an answer with respect to the fourth action, because he answered very openly and honestly every question that was put to him. He begged the House to consider before they decided on committing this boy how far they were prepared to go in this course? How many sons would they continue to commit for obeying their fathers? If any mode could be devised by which the House could get out of this difficulty, it ought to be adopted. An hon. Member had said, in the course of the discussions which had taken place, on this subject, that unless the privileges of the House were supported by public opinion, it would not be easy to maintain them; but he very much doubted whether the people of this country would uphold them in sending lads one after another to gaol for obeying their fathers, whom by legal articles they were bound to obey. He hoped, therefore, that the House would pause before they took the present step. When he heard the lad give the first series of answers he was glad to find, that he said nothing which could implicate him, for the answers were satisfactory as far as he was concerned. But he did not expect that hon. Members would go trying back in order to fix on some former proceeding so as to lay hold of something for which the lad had not been summoned to answer.
§ Mr. T. Duncombethought it quite immaterial to the question whether the young 355 man who appeared at their bar had been engaged in the fourth, fifth, or sixth action brought in Mr. Stockdale's name. He did not think that he ought to be called at all. It was altogether unworthy of the House to be engaged in such a course as it was now pursuing. They had been called together about five or six weeks ago for the consideration and despatch of "divers urgent and weighty affairs." They were in the fifth week of the Session, and what had they done? They were at the end of that time engaged in a discussion whether they should commit this boy for obeying his father. The hon. and learned Member had said he would support the motion for declaring this young lad guilty of a contempt, because he obeyed his father, to whom, besides the duty of a son, he owed also the obligation of an apprentice or articled clerk. He should like to know how that hon. and learned Gentleman would feel if one of his own sons was to be committed for assisting him if he were in any difficulty or embarrassment. There was no doubt that this boy, if committed, would call forth the sympathies of the public, because it would be generally felt that he ought not to be punished for what was only an act of obedience to his parent, and it was equally certain that the House would lose much in public opinion, and would (as we understood the hon. Member) make itself the laughing stock of the country. It was, he thought, high time that this course of proceeding should cease. To him it appeared that there was a way of getting out of the difficulty without any compromise of its honour or giving up its privilege, and that was by a joint Committee of both Houses meeting in conference and declaring what they considered to be their privilege in this matter. There was a case analogous to this as regarded the joint Committees of both Houses. In 1763 John Wilkes was arrested on a general warrant for seditious libel. He was brought up by habeas corpus before the Court of Common Pleas, and claimed his discharge on two grounds: first, that general warrants were illegal; and next, on his privilege as a Member of Parliament. The Court held that the first plea was not good, thereby deciding that general warrants were legal, but it released him on his plea of Parliamentary privilege. The law as to general warrants had since been altered, but it was then and now admitted that a Member of Parliament was protected 356 by his privilege in all cases except those of high treason, felony, or breach of the peace. The Attorney-general of that day not satisfied with the decision of the Court, went on with the prosecution, the House having declared by a resolution, that the privilege of Parliament did not extend to seditious libel. The court of law, however, held that it did extend to that case. The Commons having passed the resolution just mentioned, communicated it in a conference to the Lords, and a joint Committee of both Houses met to consider the subject. The question was warmly contested in each House, but the Lords eventually decided that the privilege of Parliament did not extend to cases of seditious libel. No writ of error had been moved against the decision of the court of law, because after the decision to which the Lords had come there was no doubt that on an appeal they would reverse the decision of the court below. He would now propose that the decision of this question be sent to a joint Committee of both Houses. If they agreed to a resolution affirming the claim of privilege for publishing the reports of both Houses, no legislation would, in his opinion, be necessary; but should it be so considered, the joint Committees would soon agree on the heads of a bill for that purpose. This course would, he thought, get them out of the difficulty in which they were now placed, and save them the trouble and loss of time in going on in this way from day to day. The hon. Gentleman then read the motion which he was about to submit, as an amendment to that before the House, to this effect—that the privileges of Parliament are intended solely for the benefit of the community at large, and that the right of publishing such of its reports, votes, and proceedings as shall be deemed necessary or conducive to the public interest, is an essential incident to the constitutional functions of Parliament—it is expedient that a joint Committee of both Houses of Parliament shall be appointed for the purpose of considering the best mode of securing to each branch of the Legislature the free exercise of a power so important to the public welfare. This, of course, would refer to both Houses of Parliament, and this was necessary, for from what had fallen from Lord Denman when this question was before his court, it was clear the he did not recognize this right of publication in either House. His observation was, 357 "I am not aware of the existence of any body in this country whose servants had a right to publish libels against any individual." From this it was clear that the Lords were equally interested in the assertion of their right of publication, and it would be highly probable that they would join with the Commons in asserting the rights of both. The hon. Member concluded by moving his amendment.
§ Mr. Leader, in seconding the amendment, said that up to a recent period he had voted with the noble Lord (Lord John Russell) on all these questions of privilege, and he had done so in the belief that the House ought to possess the full right of publication. He considered that there were many things objectionable in the course pursued by the Government in this matter, but still the right of publication of their proceedings was so important that he thought it should be secured by every means in their power. However, on consulting some friends who were more learned in these matters, he felt convinced that the House did not, by the course it was pursuing, gain the right which they claimed, and that it was daily weakening the authority of the law in the country. The House did not gain the publicity which it sought, for the blue books which were sent forth in such numbers in every session, were not read by the public. The public came to a knowledge of their contents through the daily, weekly, and, monthly press, and yet none of these were protected in such publications, and an action might be brought against any one of those publications for any alleged libel in those reports; so that, in fact, there was no publicity whatever gained by the House—at least none that was protected. It was, therefore, necessary that the House should take some other course. Experience had shown that in all the contests in which it was engaged as regarded its privilege, it had never succeeded except it was backed by public opinion; but he must say that public opinion was not with them on this occasion. He would repeat, that the public opinion was decidedly against them. He had had many representations on this subject from some of his constituents. He did not say that he had changed his opinion on that account, but he would assert that one could not meet with any persons out of that House, except the hangers on of Government, who did not say that the House was acting 358 tyrannically, and that it would be beaten at last. Let him ask what would be the situation of the Attorney-general or of the noble Lord if twenty such men as Howard or Stockdale were to refuse to attend to the injunctions of the House. If, as he believed, this assertion of privilege, or the mode of doing it, were not supported by public opinion, and if as was the fact, it was declared to be illegal by a large body of the lawyers of the country, and by one of the courts of law—if under these circumstances twenty resolute men, not deterred by threats of commitment, were to go on with other actions, refusing to admit the privilege, what, he asked, would be the situation of the Attorney-general and of that House! Would it not be one of increased difficulty and embarrassment? After having gone all these lengths in support of its privilege, how did it know that the House of Commons in the next Parliament might not take a very different view of the question? He repeated, that what they had yet done did not secure to them the right of publishing. The courts of law, as far as they had resorted to them, had decided against them; and if they did not respect the law, he would ask what authority would they respect? Even in America, whose republican institutions were so often cast up against Members at his side, the greatest respect was paid to the decisions of the High Court of Appeal, even in cases between states and the federal Government. The best and the safest way to settle this matter would be by legislation, or by conference between the two Houses, and the Lords would not refuse their sanction and support in a matter which affected their privileges also. Though they might not stand very high in the estimation of the hon. and learned Member for Dublin, and perhaps with good reason-yet they would not be so stupid as not to support their own privileges. If, however, the course pointed out by the amendment of his hon. Friend should not succeed, they would be in no worse situation than they were at present; but if they went on as they were doing, they might rely upon it that they would become every day more and more unpopular with the country. One subject connected with this question was the present state of the law of libel; and, as far as related to that, the present discussions and proceedings would do good, if they should have the effect of in- 359 ducing the Government to alter the law. In conclusion the hon. Member repeated his opinion that the reference to the joint committees of both Houses would be the most effectual means of bringing the question to a satisfactory termination.
Dr. Lushingtonhad listened with some surprise and unmitigated pain to the speech of the hon. Member for Finsbury, and at finding with what slight regard to circumstances he discharged his Parliamentary duty. There was scarcely one ground of objection which he now urged which would not have applied with equal force to the votes he had already given on this subject. What, let him ask, had since occurred to induce him to change his opinion? The hon. Member for Westminster said, that they would not secure publication by what they were now doing, and that the reports of the proceedings of Committees found their way to the public only through the daily, weekly, and monthly press. Did the hon. Member recollect that his constituents frequently applied to him for copies of the evidence on which reports of committees were founded, and that during the Parliamentary recess the papers teemed with voluminous extracts from those reports? There was no ground for the hon. Member's change of opinion on the score of publishing. Then it was said that the people of the country did not go along with the House in those proceedings. That he must take leave to deny. He represented a much larger constituency than his hon. Friend, and from any one of them he had heard nothing against the course which the House was taking, and if he had, he would have said to the party making the objection, that if the right which the House claimed were not asserted and affirmed, they could not come to him for copies of those reports; or if they did, and that he gave them, he would then be the publisher of anything libellous which they might contain. If the power were taken from the House, the public must do without those useful documents. His hon. Friends who had moved and seconded the amendment seemed not to agree in the view they took of this matter. One thought it was all important to the welfare of the country, but the other said nothing on the subject. His hon. Friend objected not so much to the privilege as to the mode of asserting it. Of those who might concur in that objection, let him ask what was the course which they 360 were prepared to pursue? If they once conceded the point of being the only judges of their own privileges, they would be giving up the whole question. He would grant that the courts of law contained independent and upright judges, but did not the House recollect, and above all did not his right hon. and learned Friend the Member for Ripon recollect, the memorable case in which the judgment of Lords Eldon and Ellenborough was reversed by the House of Lords—when the halt and the blind and the sick were brought down—when every species of influence, direct and indirect, was resorted to for the purpose of rendering nugatory the wise, the legal decisions, of the great men whose names he had mentioned? His right hon. and learned Friend would also recollect with what indignation those eminent individuals walked out of the House of Lords when they found that their opinions were to be overborne by numbers, and not by reason—when they saw that justice was to be trampled under foot, and that injustice was to triumph. Now, might he not be permitted to suggest the possibility of a similar occasion occurring again? He regarded the principle for which they were contending as something so sacred, that nothing should induce them to abandon its maintenance. If they submitted a question of this kind to the judgment of the courts of law, they could never afterwards find any excuse for refusing to submit all other cases to similar tribunals. The House of Commons would then be no longer independent, and could no longer conscientiously discharge the duties which they owed to their constituents. To come, however, more immediately to the present motion, an appeal had been made to the House by the right hon. Baronet the Member for Kent, to the effect that something ought to be conceded out of courtesy to the Members who sat on the same side of the House with the right hon. Baronet. He professed his inability to understand the reasonableness of such an appeal; could the present be regarded as a question for the remission of punishment on the ground of the courtesy due from one side of the House to the other? The parties now in prison were not sent there for any purpose but to maintain the privileges of the House of Commons—they were not sent to prison under the influence of any feeling of anger—that course was 361 merely resorted to, being considered as the most efficacious mode of asserting the rights which belonged to that House. He should certainly support the present motion, and he did so with a strong conviction that he could not continue to hold his seat in that House with credit to himself or advantage to his constituents if he ventured to pursue any other course. It appeared to him most plainly that that was the only one which the House could follow; at all events he was prepared to pursue it, however great the hazard to himself. Whatever of character or of popularity he happened to possess, he was perfectly willing to stake it upon the result of the present proceedings. He could not for a moment permit himself to hesitate upon such a question. If the House of Commons clearly saw, as he did, the necessity of maintaining their privileges, it would be pusillanimous, it would be cowardly not to do so, especially in circumstances like the present. Upon these grounds he should vote for the committal of Mr. Howard, jun. It appeared to him beyond the possibility of question that that individual had been guilty of a breach of the privileges of that House as related to the fourth action. There could not be a shadow of doubt that he was cognizant of the cause of that action, and therefore he thought the House ought on no account to reject the motion, but cordially and promptly to vote for its adoption.
§ Sir R. Peelsaid, that he should defend the course taken by the hon. Member for Westminster, though he could not defend the speech which the House had just heard from him. He seconded the present amendment in perfect conformity with every principle that he had avowed in the earlier part of the proceedings in which the House were engaged. The motion asserted this principle, that the privileges of Parliament were intended for the advantage of the community at large. If so, did it not become a sacred duty which they were bound under all circumstances to discharge, not to permit those privileges to be infringed? If they existed not for the benefit or profit of individual Members, nor for that of the House of Commons collectively, but for the advantage of the community at large, ought they, acting as trustees for that community, to permit those privileges to be lightly violated? If some of his constituents told him that the House of Commons were 362 pursuing an unwise and precipitate course, he might very fairly reply to them that that course was not adopted for any personal or tyrannical purpose. The hon. Gentleman the Member for Westminster had observed that the publication by the House, as it was called, amounted to nothing; that the real and efficient publication was by the newspapers; but the House must see that such an observation was inapplicable to the question then under consideration. The hon. Member for Westminster seconded an amendment favourable to a publication of their reports, on the ground that it was necessary to the discharge of their public duty, as an essential incident of their representative character, and there was no other mode in which they could exercise the privilege than that which they had adopted; and it was at the same time to be recollected that the publication by the newspapers did not take place until after the publication by the authority of the House. In order to justify the course which he was taking, he wanted no other admission than this—that the privilege was necessary to the discharge of their functions as a House of Commons. He did not expect that upon the present occasion a general discussion would arise, but if it should arise, he thought the House ought to take care that the grounds of their conduct be not misunderstood. It was material that the public should clearly understand what the real state of the case was. A great anxiety prevailed for the improvement of prison discipline, and it was in the gratification of that that the present proceedings had arisen. He admitted that he consented to resorting to them with extreme reluctance; he feared that the powers possessed by the House were imperfect, and as the courts, instead of vindicating their privileges, as they had been accustomed to do, had given judgments adverse to those privileges, he must say that he could not exclude from his mind the possibility that to legislation they must at last come. When they did approach to that, it was most material to them that they should not be prejudiced by silence as to the facts of the case, and it was therefore that he did not wish to see any undue restraint placed upon the course of the discussion. Some complaints had been made of harsh terms used during these proceedings. It must be clear to all who had any experience of the business of the House of 363 Commons that they could not go on if they were not at liberty to use strong language: he willingly conceded that freedom to others, and he now claimed it for himself. The public, in forming a judgment upon these proceedings, ought not to forget the occasion which had given rise to them. As he had already said, there existed much anxiety upon the subject of prison discipline. Commissioners were appointed to inquire into the state of the gaol of Newgate. Under the guise of a medical treatise, a book was found there of a most obscene character. He had thought it his duty to refer to that book, and it proved to be an exceedingly obscene volume put forth under the paltry pretence of being a medical treatise. A jury were of that opinion. The commissioners appointed under an act of Parliament likewise thinking so, made a report. The publication of that report became the subject of an action, and there arose considerable doubt as to whether or not it was a privileged publication. In his opinion there never could be a clearer case: nor could any case be more important? It lay at the root of all their privileges. It could not for a moment be supposed by any rational and intelligent man that the representatives of the public were to be precluded from communicating with the public upon such a subject. It was one of paramount importance in the business of prison discipline—it was of the very highest importance, that those who were sent to gaol should not come out worse than they went in, and for this purpose it was important that, under pretence and colour of a medical treatise, a book of gross obscenity should not be put into the hands of prisoners. The Court of Queen's Bench had decided that the House of Commons were not justified in issuing this publication, and that Parliament had no right to publish libels. On the other hand, the House of Commons denied the power which was incident to a due exercise of their authority as a component part of the Legislature. It should never be forgotten that positive assertions were made to this effect, that actions might be brought in the inferior courts, and those courts might disregard a plea put in by Mr. Hansard, setting forth that the publication had taken place by order of the House of Commons. Mr. Justice Patteson had said, that he was met by the objection, that if the superior courts tried such actions, inferior courts, 364 courts of quarter sessions, and borough courts might do so likewise. He admitted that this was well founded. Courts of quarter sessions—men not clothed with the authority which belonged to the judges of the superior courts—might imprison the printer of the House of Commons in the case of a criminal proceeding, or render him liable to heavy damages in a civil action. Not only had Mr. Justice Patteson given that opinion, but he was enabled to state upon an authority as high as any in the country—namely, the authority of Mr. Justice Littledale, that inferior courts—that courts of quarter sessions and borough courts could try actions of this nature; that the learned judge held to result from the law. If the law were as Mr. Justice Littledale stated it, then it was clear that the printer of the House of Commons would be liable, not only in Westminster-hall, but in every court throughout the kingdom. He further begged it might not be forgotten, that every legal authority within the House had said, that the House was substantially in the right. They might object to the mode of proceeding, but not one of them defended the main judgment of the Court of Queen's Bench. His right hon. and learned Friend on his left, the Member for Exeter, and the Member for Huntingdon considered the publication in question a privileged publication, and that the decision of the Court of Queen's Bench could not be maintained; they held that the House of Commons possessed the privilege, and that the Court of Queen's Bench ought to support them. He relied not upon any extreme privilege of the House, and he thought there was no use in reviving the recollection of atrocities which belonged to a period long since passed away. At the present day there was no danger that the unwarrantable powers formerly exercised would be again called into existence. He might with equal justice say, he could not permit the Court of Queen's Bench to decide on any privilege of this House, because he found that, in former periods of our history, they had given some most extravagant decisions. For instance, he had found a case in which the Court of Queen's Bench had decided that after a session of Parliament, Members were liable to be questioned in a court of law, for speeches they had made in Parliament during the session. The Court of Queen's Bench had unanimously decided with respect to that very question, 365 that they were so. On that occasion, one of the judges had said, that "no outrageous speech against any great Minister of State had ever been made in Parliament that had not been punished," and agreeably to that doctrine, Mr. Justice Jones, on the last day of the term, pronounced judgment, that Sir J. Elliot should pay a fine of 2,000l., because he had been the most outrageous, and, as it were, the ringleader of the party in Parliament; that Mr. Hollis should pay 1,000 marks, and Mr. Valentine 500l. That was what the Court of Queen's Bench had done in former times, but he did not believe that the Court would do that now. The question really was, what were their privileges, and were they justified in maintaining them? Now he was for maintaining all those privileges of the House which were essentially necessary to the due performance of their functions. He was about to state, however, that he relied on judicial authority of a very recent period. The doctrines laid down in the case of "The King v. Wright," by judges of the greatest eminence, went the whole length of maintaining the privileges for which they were now contending. They went, indeed, further, but they included the privileges of the House. The case itself was a very strong one, and the decision was most important. It appeared that Horne Tooke had brought an action against a printer for a libel. Application was made to the Court of Queen's Bench for a criminal information against the defendant, but by some rule of special pleading with which he was not acquainted, the criminal information was got rid of, without deciding the merits of the case. But he looked to the doctrines that were then laid down by the judges; and he knew not how it was possible, after that, to contend that the judges had not, at a very recent period, admitted the privileges of the House of Commons. The action he was now alluding to was against a printer, with whom the House had nothing to do, for reprinting a report of the House of Commons, which contained, as Horne Tooke contended, a libel against him. On that occasion Lord Kenyon said—
That the inquiry was made by the House of Commons: it was an inquisition taken by one branch of the Legislature to enable them to proceed further in passing regulations for the better government of this country. This report was first made by a committee of the 366 House of Commons; it was then communicated to the House at large, and approved of by them; it was afterwards submitted to the other House, and then published. It is now sub judice. The report in question having been adopted by the House of Commons, in a proceeding of those who are the guardians of the liberties of the subject, we cannot consider any part of those proceedings as libellous, and therefore I am of opinion that the rule ought to be discharged.That was the opinion of Lord Kenyon, in favour of the privileges of this House, because he considered that they were necessary. Mr. Justice Grose also said—This is a motion for leave to file a criminal information on account of a libel, but that libel is contained in a publication of one of the branches of the Legislature whilst they are acting for the safety of the State. I have looked for authorities on this point, and I can find no one resembling this except the case of 'The King and Sir W. Williams.' That was most like this case, but it was declared by the highest legal authorities to be disgraceful to the country.Mr. Justice Lawrence, too, also maintained the doctrine which Lord Denman maintained on Saturday last—that the publication of trials in newspapers was justifiable on the ground that the public were interested in knowing what passed in the courts of justice. When an action, therefore, was brought against a newspaper for an account of a trial, that publication was considered privileged, and to be protected by a court of justice; but if, under those circumstances, the printer of the paper was to be protected, would not the House of Commons support its own authorized printer in publishing their proceedings? Mr. Justice Lawrence, in giving his opinion in that case of "The King and Wright," said—The same reason also applies to the proceedings of Parliament. It is an advantage to the public and even to the legislative body itself, that a true account 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 for it. Therefore, although the defendant was not authorised by the House of Commons, yet as he only published a true copy of their report, he was of opinion that the rule should be discharged.But what a revolution had taken place in the Court of Queen's Bench since that time! Here were judges some thirty years ago maintaining that an unauthorized printer, who, for his own gain, a 367 mere speculation for private interest, published a true copy of their reports, was protected, because the public had an interest in knowing what passed within the walls of Parliament; and yet that same court now with equal unanimity denied to the authorised printers of the House the power of publishing to the country the facts that were stated in the report of the committee, that Newgate required reform, for obscene publications had been found to have been introduced there. He relied not on the reason of the case, not on that authority in which the hon. Gentleman found support for his resolution, not on any extravagant claims brought forward by a popular assembly, but he relied on the solemn judgment of the Court of Queen's Bench, some thirty or forty years ago, giving protection to an unauthorised printer for publishing a correct copy of the proceedings of the House. And when they had been told that every inferior court in the country might summon their agents and servants before them to answer for a libel, because the private feelings of some individual were libelled, he would put it to the people of England, whether the opinion of the judges were to break in on those privileges which they had exercised for 200 years, which they had struggled for at a time when judges were corrupt, and their powers were despotic and almost predominant. Was it after a lapse of 200 years that they could see, without apprehension, a course taken which should place the decision of the privileges of the House of Commons in the hands of judges who had already shown a disposition to curtail even those that were necessary? By their pleading to the action of Stock-dale, they had submitted so far the decision on this question to the Court of Queen's Bench. Judgment had gone against them not only on the individual point, but on the existence of the power; and at the same time a claim was preferred for every inferior court to exercise the same power over their privileges, and it was said, that every man had a right to bring these actions against the printers of the House, notwithstanding the order. What course, then, was to be followed? He had heard complaints made about the delay that had occurred; but he was not sorry for that delay. It was said now, that public feeling was universally against the House, Public feeling was 368 of the utmost importance, if those who represented it were satisfied that that public opinion was correct; but no man could by intuition decide on this question, and it was in vain for a man who had not read much on the subject to say that the House of Commons was wrong. No man's opinion was worth any thing who would not study the subject, but who would undertake to decide on primâ facie grounds. Now, last year the public opinion was this, that for the House of Commons to open a shop for the sale of libellous matters was one of the most monstrous things in the world, although it was quite right to publish copies for their own Members. And yet the Court of Queen's Bench had admitted that the sale constituted no part of the transgression. They were now, too, discussing the question on the very ground whether the sale was necessary for the due performance of their duties. But suppose they had appealed to the fifteen judges in the Exchequer Chamber, and they had decided against them. They would then have manifested no desire to vindicate their privileges by their own authority, and what would have been their next step? They would have gone to the House of Lords, And suppose the House of Lords had decided against them, how many other privileges would have been endangered by it? The question would have appeared to turn on a single privilege, but the judgment would have shown that there was no privilege which they now possessed that was not held by the precarious tenure of the sanction of the House of Lords, and that they had admitted that extrinsic authority as the judges of their privileges; and they would at last be obliged to vindicate their own privileges themselves, because they had no other mode. If they were to maintain their privileges by their own authority, there was not one privilege in which they could help asserting that power in spite of any feeling against it, and therefore he could not think that the House of Commons, on a vital question like this was to give up that power, which affected not this privilege alone, but every other privilege in respect to which there had never been any question raised. It had, at least, been allowed that they had the effectual power of committing other ministerial officers; but he himself much doubted whether they had that 369 effectual power which he thought was suitable to the dignity of the House of Commons. And he therefore repeated again, that whilst he attached the utmost importance to those privileges, when it should be established that they had not the effectual power which they ought to possess, he for one should not think it in the slightest degree inconsistent with the dignity of the House of Commons to take that course which had been taken in other cases, and by enactment to obtain those full powers which he considered to be essential to the proper discharge of their duty. These actions were, indeed, instances of the incompleteness of the present power of the House; and when he saw the estimates in which it was proposed to vote a sum of money to Messrs. Hansard, although he should give his vote in favour of it, yet he should do so most reluctantly, as he considered the necessity of it to have arisen from the incomplete power of the House. His opinion on this subject had been the same from the very first. He was fully aware, if they proceeded by enactment, of the danger of leaving other privileges liable to be questioned; but if he were told that there was no other remedy against these actions, both during the recess and the Session, than by consuming the public time day after day, he should say that the time was come, when it would be perfectly consistent with a due regard to their own dignity, and the public interests, if they attempted to find a substitute by enactment, at the same time reserving to themselves, in case that enactment should fail, the power they now exercised of vindicating their privileges by their own proper and intrinsic powers.
§ Mr. Wakleysaid, that his hon. Colleague, in introducing his motion, had asked what that House had been investigating since the commencement of the Session. He (Mr. Wakley) should like to ask the hon. Member if, after the speech they had just heard from the right hon. Baronet, the Member for Tamworth, whether he would think it necessary to repeat his question? In point of fact, the House of Commons had never met for the discussion of a more important question; nor, in his opinion, had a question ever been discussed with more patience or forbearance. His hon. Colleague had submitted a motion to the House, which had been dissected by the right hon. Baronet 370 in such a manner as to make his hon. Colleague sufficiently ashamed of his offspring to consent to its burial without further funeral ceremony. Both his hon. Colleague, and the hon. Member for Westminster, seemed to think that public opinion was with them. He had been marvelling, since the addresses of those hon. Members, where they could have lately been, or with what sort of society they had lately associated, because he, whose occupation led him to the very borders of the county, found the people every where of one mind, and that was, to encourage the House to support its privileges. Above all things the people said, "Don't go to the House of Lords." He was ashamed to hear any popular representative make such a proposal. He would ask hon. Gentlemen opposite, who resisted the opinion of the majority, what course would they take? Would they call the judges to the bar? If they would support that motion he would make it, because he was of opinion, that the judges ought to be brought to the bar. He could tell the right hon. Baronet the Member for Tamworth, that his conduct on this question had made him the most popular man in the House, for that all parties were unanimous in his praise—and if hon. Gentlemen opposite did not approve of the course pursued by the right hon. Baronet, what course would they themselves suggest? Were they to give up the persons who had violated their privileges? The right hon. Baronet had shown, that the judges would not maintain their privileges; that not only would they not protect them, but they would question them on every opportunity. He would not now go into any other parts of the question. He would not inquire, at present, whether the imprisonment which the sheriffs had undergone was sufficiently rigorous. He by no means blamed the House for releasing one of the sheriffs, for he felt convinced of the validity of the reason given for the discharge of that gentleman. Indeed, he was not at all surprised that such a reason should have existed, for he recollected remarking one evening, as he came into the House, a number of people running backwards and forwards, making a great bustle, and very soon he heard cries of "Make way, make way—dinner for the sheriffs!" Now, he must say, that to over-feed persons who had violated the law was not the way to maintain the 371 privileges of the House. A lower diet, and one which would hot create a superfluity of blood, should be prescribed, if it were merely out of humanity. The House must go on in the course which it had begun, unless it was prepared to sacrifice its independence, and the liberties of the people.
§ Mr. Shawwished to explain what the observation was with which he had interrupted his right hon. Friend the Member for Tamworth. He (Mr. Shaw) had merely wished to call his right hon. Friend's attention to the fact, that a civil action could not be maintained in a court of quarter sessions. With regard to the question before the House, he would recommend the hon. Member for Finsbury to withdraw his amendment, which would merely confuse that which would be a very simple question, although it had been much lost sight of in some of the speeches which had been addressed to the House. The principle of the hon. Member's amendment was one deserving of the serious attention of the House, but it would be much more advisable to reserve it for separate and distinct consideration on some other opportunity. He would say one word as to the particular question before the House. Was it not an act of cruelty to send to gaol a boy of eighteen or nineteen years of age because he had obeyed his father's orders? It appeared that this young man was conducting his father's business during his confinement, and that no other member of the family was competent to do so. Upon the same principle that he (Mr. Shaw) had formerly advanced, when he urged the House to deal with principals, and not with those who were merely the instruments to carry into effect the orders of others, he now asked the House to be satisfied with the imprisonment of the father, and not to punish the son, who merely acted by his father's directions. As far as he (Mr. Shaw) had an opportunity of observing the state of public opinion, he agreed that it was opposed to the proceedings of the House, and it would be still more strongly against the House if it adopted the course now proposed.
Mr. Prymethought that the House would act correctly in committing the younger Mr. Howard. The hon. Member for Dublin University contended that the son should not be punished for obeying the commands of his father. He 372 would ask that right hon. Gentleman whether he would in the court over which he presided, with so much credit to himself, admit as a defence for a culprit the assertion that he had acted under the direction of his father who was in prison? Their only course was to attack the instrument, and, if they admitted the defence that persons were acting under orders, their committals would completely fail of their object.
§ Sir E. Sugdenthought that the younger Howard could not be committed on the testimony he had given. He would read to the House the resolutions of last night, to show that the young man had nothing to do with the action to which those resolutions referred. The right hon. Gentleman, having read the resolutions, said that he thought that the young man had completely cleared himself of any participation in the fifth action—the action for which he had been cited to the bar. For this reason he thought it would be an act of injustice to punish him.
§ Mr. Freshfieldhad not expected that the general question of privilege was to be re-argued on the present occasion, nor had he supposed that it would have been considered necessary to defend the proceedings of the House upon the special circumstances of the particular case, or upon the dire necessity which was imposed upon the House of informing the public what books were read in Newgate. He had thought the House would have stood upon the broad question of its privilege, and not have condescended to go into the facts connected with the particular publication out of which those proceedings had arisen. If Mr. Stockdale had published an obscene book, let him be punished in due course of law; it was not necessary for the House of Commons to take upon itself the duty of holding him up to public reprobation: the House might give the public all the information which was requisite without descending to those minutiæ which would give any individual a right to complain that he had been unnecessarily libelled. The House might no doubt stop the whole course of justice, but unless it did so it would never be able to stop any particular action. Fresh proceedings would continually be taken, and then the House might go on committing another man or woman—for the proceedings might be carried on as well by Mr. Howard's wife as by his 373 son; the House might go on till it committed the judges, but until the whole course of justice was stopped, particular actions would go on at the same rate as other proceedings in courts of law. Let the privilege of the House be declared by an act of Parliament, then the public would know what the privilege was, and individuals would not be injured.
§ Mr. Goulburnrose to satisfy the House on the point suggested by his right hon. Friend the Member for Ripon. If he understood the objection of his right hon. Friend, it was, that young Mr. Howard had been summoned before the House with respect to the fifth action, and they were about to punish him with respect to the fourth action. But the question before the House was, had a breach of privilege been committed or not? When Mr. Howard had been before the House the other day, he said he had served two notices, one by Mr. Pearce, the other by Mr. Howard, jun. The House had summoned these persons before them, and Pearce did not appear, but Howard, jun., appeared, and said he had done the act—that he had served the notice of the fourth action. [No.] He so understood him at the bar. If so, he had been guilty of a breach of privilege.
§ Mr. Williams Wynncared not for what Mr. Howard had been summoned. Suppose a Member rose in his place and complained of a distinct breach of privilege, and the party was called to the bar; if it appeared that he had been guilty of any other breach of privilege, he might be committed for the contempt. He should not, therefore, go into the question further than to say that Mr. Howard had admitted that he had been guilty of a breach of privilege.
§ Mr. Lawcalled the attention of the House to the evidence of Mr. Hansard, who said, that the writ was served by a person who represented himself to be named Pearce, and a clerk of Mr. Howard. The charge against young Howard was, that he had been instrumental in serving the writ, whereas it appeared from the evidence of Mr. Hansard that it was not the person summoned to the bar, but Mr. Pearce, who served it. They had found it impossible to restrain these actions by the commitment of the father, and the House was now proceeding with so much severity against his son and clerk, a young man nineteen years of age, because he was instrumental in serving the writ of inquiry, 374 so far from which Mr. Hansard, their own witness, said he was not the party who took the step, but a person named Pearce. That might solve the difficulty of the non-appearance of Mr. Pearce. [A laugh.] The Gentleman who laughed might be in the confidence of Mr. Pearce. [Cries of "Divide!"] It was very well for Gentlemen who had come down to the House to decide without hearing one word of the evidence, to cry "Divide." In the few observations he had to make, he should not be deterred by the cries of a majority, who were not content to carry their object, but who wished to put an end to discussion.
§ Mr. Sanfordsaid, the person at the bar had been asked if he had taken any proceedings in the third action; the answer was, "The fourth action—yes, I have done a great deal." He was then asked, "The action on account of which your father is in confinement?"—Answer, "Yes." Under these circumstances, this young man, knowing that his father was in confinement for a breach of the privileges of the House, had aided in carrying on the action, and had, therefore, been guilty of a contempt of the privileges of the House.
§ Sir E. Knatchbullsaid, it did not clearly appear what the young man had done in furtherance of the action commenced by his father. He would call the attention of the noble Lord to the fact, and suggested that it should be more definitely stated what the breach of privilege was.
§ Lord J. Russellsaid—It seems to me that all those several actions are part of one and the same proceeding; and, with regard to one of them, it was resolved yesterday, that being any way concerned in bringing (or aiding in bringing) that action, is a gross breach of the privileges of this House. ["Which?"] The action for which the jury has been summoned for the 20th February. As I said, these proceedings are all intended to defeat the privileges of this House. It appears the younger Mr. Howard, having been clerk to his father for three years, has been the instrument of bringing these actions one after another; and Mr. Howard, though in custody, employs the clerks in his office to defeat our privileges. There can be no doubt that the younger Mr. Howard acted knowingly; and as for the remark, that he was not brought to the bar for the breach of privilege for which it is proposed to commit him, I do not see, unless the 375 right hon. Baronet can maintain that no man at that bar is to plead guilty of a breach of privilege, that this House can avoid committing any individual who shall acknowledge himself guilty of such a breach.
§ The House divided on the original question:—Ayes 137; Noes 37: Majority 100.
§ On our re-admission we found
§ The Attorney-General then moved, "that Thomas Howard, jun., had been guilty of a contempt and breach of the privileges of the House, and that he, for the said offence, be committed to the custody of the Sergeant-at-Arms. He trusted that the young man would express his contrition for having violated the privileges of the House, and undertake not to persist in such violation; and if he did this, he should be most ready to move that he be discharged.
§ Sir E. Sugdenagain insisted, that there was nothing before the House to show that this young man had committed any act in breach of the privileges of the House. For all that the House knew, he might merely have copied papers in his father's office.
Mr. O'Connellthought it was very painful for the House to be under the necessity of committing any individual, and very desirable, if possible, to escape from that necessity. There was only one way in which they could escape, by the individual expressing his contrition, and undertaking not to offend again. He therefore should move, as an amendment, that he be called in to the bar of the House, and that the resolution be read to him; and that it be put to him whether he wished to make any statement to the House.
§ Lord J. RussellBefore the hon. and learned Gentleman actually move any amendment, I would call his attention to the fact, that this House has already voted that this person is guilty of a great contempt, and I fear there would be considerable difficulty in adopting the course of calling him to the bar. We cannot forget that with regard to another person we had what seemed to us to be an expression of contrition, and an assurance that the offence would not be repeated, and the very next day we saw a letter in the papers of a totally opposite tendency. It appears to me that, for a person really desirous of conforming to the privileges of 376 the House, the course to be pursued is for him, when in custody, to apply to the House by petition, and in his petition to state precisely and exactly, that he was desirous to obey the orders of the House, and regretted having committed a breach of privilege. If this be done, then the House would probably feel justified in extending clemency to the petitioner.
§ Mr. Shawobjected to calling young Mr. Howard to the bar now to make any verbal declaration. It was offering a temptation contrary to good policy and morality.
§ Mr. Kellyagreed with his learned Friend the Member for Ripon, in calling on the learned Attorney-general to declare explicitly for what act the young man was to be committed. From the evidence he could not understand what it was. From the evidence it certainly did not distinctly appear.
§ The House divided:—Ayes 134; Noes 41: Majority 93.
| List of the AYES. | |
| Abercromby, G. | Fremantle, Sir T. |
| Adam, Admiral | Gordon, R. |
| Aglionby, Major | Goulburn, H. |
| Baines, E. | Grattan, J. |
| Baring, F. T. | Greg, R. H. |
| Barnard, E. G. | Greig, D. |
| Barry, G. S. | Grey, Sir C. |
| Bellew, R. M. | Grey, Sir G. |
| Bernal, R. | Hall, Sir B. |
| Bewes, T. | Handley, H. |
| Blair, J. | Harcoart, G. G. |
| Blake, M. J. | Harland, W. C. |
| Blake, W. J. | Hastie, A. |
| Bridgeman, H. | Hayter, W. G. |
| Briscoe, J. I. | Heathcoat, J. |
| Brodie, W. D. | Hector, C. J. |
| Brotherton, J. | Hobhouse, Sir J. |
| Browne, R. D. | Hobhouse, T. B. |
| Busfeild, W. | Hodges, T. L. |
| Campbell, Sir J. | Hollond, R. |
| Clay, W. | Howard, F. J. |
| Collins, W. | Howick, Lord |
| Corbally, M. E. | Hume, J. |
| Craig, W.G. | Humphery, J. |
| Currie, R. | James, W. |
| Dalmeny, Lord | Lockhart, A. M.* |
| Dashwood, G. H. | Lushington, C.* |
| Divett, E. | Lushington, S. |
| Donkin, Sir R. S. | Lynch, A. H. |
| Dundas, F. | Macaulay, T. B. |
| Elliot, hon. J. E. | Macleod, R. |
| Evans, W. | Melgund, Lord |
| Ewart, W.* | Miles, W. |
| Fitzalan, Lord | Morris, D. |
| Fitzpatrick, J. W. | Muskett, G. A. |
| Fleetwood, Sir P. | O'Brien, W. S. |
| Ford, J. | O'Callaghan, C. |
| O'Connell, D. | Tancred, H. W. |
| O'Connell, J. | Thornley, T. |
| O'Connell, M. J. | Townley, R. G. |
| O'Conor, Don | Troubridge, Sir E. |
| Ord, W. | Tufnell, H. |
| Parker, J. | Turner, E. |
| Parnell, Sir H. | Turner, W. |
| Pechell, Captain | Vigors, N. A. |
| Pendarves, E. W. | Villiers, hon. C. P. |
| Phillips, M. | Vivian, Major C. |
| Pigot, D. R. | Vivian, Sir R. H. |
| Pinney, W. | Waddington, H.* |
| Pryme, G. | Wakley, T. |
| Rich, H. | Wall, C. B. |
| Rickford, W. | Wallace, R. |
| Roche, W. | Warburton, H. |
| Russell, Lord J. | Ward, H. G. |
| Sanford, E. A. | White, A. |
| Scholefield, J. | Wilbraham, G. |
| Seale, Sir J. H. | Wilde, Sergeant |
| Sheil, hon. R. L. | Williams, W. |
| Sinclair, Sir G.* | Williams, W. A. |
| Smith, B. | Winnington, Sir T. B.* |
| Somers, J. P. | Wood, G. W. |
| Stansfield, W. R. | Wood, B. |
| Stewart, J. | Wynn, rt. hon. C. |
| Stuart, Lord J. | Wyse, T. |
| Stuart, W. V. | Yates, J. A. |
| Stock, Dr. | |
| Strickland, Sir G. | TELLERS. |
| Strutt, E. | Maule, hon. F. |
| Surrey, Earl of | Steuart, R. |
| List of the NOES. | |
| Alsager, Captain | Packe, C. W. |
| Attwood, W. | Pakington, J. S. |
| Broadley, H. | Plumptre, J. P. |
| Bruges, W. H. | Polhill, F. |
| Dalrymple, Sir A. | Praed, W. T. |
| Darby, G. | Pringle, A. |
| Dick, Q. | Pusey, P.* |
| Dowdeswell, W.* | Richards, R. |
| Duke, Sir J. | Rolleston, L.* |
| Fitzroy, hon. H. | Round, C. G. |
| Gladstone, W. E.* | Round, J. |
| Goring, H. D. | Shaw, rt. hon. F. |
| Grimsditch, T. | Smyth, Sir G. H. |
| Henniker, Lord | Somerset, Lord G. |
| Holmes, hon. W. | Style, Sir C. |
| Hotham, Lord | Sugden, Sir E. |
| Hurt, F.* | Talfourd, Sergeant |
| Ingestrie, Lord | Vivian, J. E.* |
| Ingham, R.* | Wood, Sir M. |
| Knatchbull, Sir E. | |
| Law, hon. C. E. | TELLERS. |
| Leader, J. T. | Kelly, F. |
| Lygon, hon. Gen. | Godson, W. |
§ * Were absent on the first division.
§ [Voted with the Ayes on the first division, and absent on the second, Bulwer, Sir E. L.; Butler, Colonel; Dennistoun, J.; Langdale, hon. C.; Loch, J.; Morpeth, Viscount; Muntz, G. F.; Muskett, G. A.; Norreys, Sir D.; Walker, R.]
§ [Voted with the Noes on the first divi- 378 sion, and absent on the second, Duncombe, T.; Richards, R.; Wood, Col.]
§ Thomas George Johnson Pearce was called to the bar and examined by Mr. Speaker.
§ Mr. Pearce stated, in answer to questions put to him, that he was clerk to Mr. Howard, Attorney, 7, Norfolk-street, Strand, and that he had been engaged in serving notices on the parties in the two last actions in question; but he was silent when asked whether he knew the nature of the actions.
§ In reply to questions put by the Solicitor-general, Mr. Pearce said, that he was in Mr. Howard's service when that gentleman was committed to custody for a breach of the privileges of the House; that he knew the cause of his committal to be the action brought by him against the Messrs. Hansard; that he had since then conducted the proceedings in the other actions; that he served the writs in these actions, and that he knew the action in question was an action involving a breach of the privileges of that House. But he also said, in answer to a question by Mr. Law, that he knew the Court of Queen's Bench held the action to be tenable, and that the Messrs. Hansard paid the damages assessed in the first instance.
§ In answer to questions by Mr. Godson, Mr. Pearce said, that he had been only about two years in the service of Mr. Howard, and that he was but a mere copying clerk.
§ In reply to questions put by Mr. O'Connell, the respondent said, that it was he who served the notice of trial about a week ago in the pending action, and that he did so by Mr. Howard's direction, from whom he received the order to that effect; that he had been to Newgate to Mr. Howard last Saturday, but not on the subject of the action, only on the business of the office; that Mr. Howard's son was the conducting clerk in the office, now that his father was absent; that there were no other persons in the office but him and young Mr. Howard; and that the entire business of the office had been transacted by them since the imprisonment of the elder Howard.
§ Mr. LawAnd you consider that you 379 would be liable to be dismissed if you did not do as yon were ordered?
Mr. PearceI have a wife and son, and I have no other means to support them except my labour. Besides, I have been a military man all my life, and I have learned never to break the law, or disobey my orders.
Mr. PearceNo. Imprisonment would be my ruin, and theirs also. I beg to tell the House, that my wife is allied to some of the oldest nobility, some of the first nobility in this country—I may say the first and oldest in this country—a family the patent of whose nobility is as early as 1616. She is the daughter of the hon. Philip Roper, and is first cousin to Lord Teynham. And as she is an outcast from her family for marrying a soldier, she would be totally destitute if she had not me to provide a subsistence for her.
§ In reply to Mr. Kelly, the respondent stated, that he had acted for Mr. Howard as he had always done; that the action in which he was concerned was for the recovery of damages for libel; and that in acting as he had done he conceived he had only discharged his duty to his employer.
§ The Solicitor-General moved, that Thomas George Johnson Pearce, having been knowingly concerned in carrying on two actions, and having served the writ of inquiry therein, after his master, Mr. Howard, had been imprisoned for the same causes, was guilty of a contempt and breach of the privileges of that House.
§ Sir E. Sugdensaid, that he had this satisfaction at last, that the House could now go no lower. The House could not be engaged in a more painful task than it was at present. Mr. Pearce had been only two years in an attorney's office, and he had done nothing in the case but the business of a common clerk. The House was, therefore, at issue with the humblest class in the country. Could it go lower? Believing that the motion was an unjust and impolitic one, he should give it his decided negative.
§ Viscount Mahonwould ask the House with 380 all respect, how much farther it intended to carry these proceedings?—to what lower depth of degradation did they mean to descend? What hope could ever the Attorney-general hold out of their coming in this manner, to a safe or honourable issue? He would entreat the House to remember that in all former cases of privilege, the national sympathy was in favour of Parliament; but they were acting at present in the very face of public opinion. ["No!"] He would ask those hon. Gentlemen who cried "No!" whether they did not find this feeling to prevail amongst all their correspondents or acquaintance? ["No!"] Well, he could answer for his own. Feeling that this question involved in the highest degree, the laws and liberties of his country, he had taken an opportunity of conversing upon it with various persons, of every party, of every profession, of almost every walk in life; and he could solemnly declare that, with the exception of Members of that House, and of their relations, he could scarcely remember two out of several hundreds who approved of the violent and vindictive course they had pursued. Let the present question he clearly understood. The question was not whether the House should have the privilege of publishing its proceedings; that privilege was freely conceded by him, and those on his side of the House, but whether the indiscriminate sale of papers, for purposes of profit, should be any longer sanctioned. He wished the privilege of publication to be placed on the same footing as it was previously to 1835, when the resolution authorising such sale was passed by the House. It was one thing to enjoy the right—and he admitted a just and necessary right—of full and free communication with constituents or political adherents, and another thing to open a shop, and to drive a trade with any one who might choose to purchase. He wished the House to enjoy every one of the rights, privileges, and powers (and who shall say that they were small ones?) which it possessed in 1835, and if any legal doubts had occurred as to any of these, he would readily join in a bill to confirm and secure them. The noble Lord opposite (J. Russell) had on a late occasion spoken of a declaratory law to settle the question; but the noble Lord had since then receded from his opinion, and he now pursued vindictive, instead of legislative measures. He did not think that the House could adhere to the rash and ill-considered resolutions of 381 1837, which denied that under any circumstances whatever, the cognizance of questions involving privilege, could belong to the Courts of Law; and he conceived that on that point the argument of the hon. and learned Member for Exeter was unanswerable, as it certainly was unanswered. That hon. and learned Gentleman had asked whether a murder, should one be committed in the execution of a writ of the House, could possibly be tried by the House, or be withdrawn from the jurisdiction of the Courts of Law, and he begged leave to repeat that question? If they could not withdraw such a case from the courts, it was clear that the resolution of 1837 was untenable. He would not, however, go into the general question; he would only repeat, he thought they would best consult the interests of the House by passing a legislative measure, to carry which, he assured the noble Lord he would readily lend his best assistance. If, however, the noble Lord would not follow up the measure he had himself proposed, and persevered in his course of commitments and of persecutions, he (Lord Mahon), and those with whom he acted, would continue to offer them the most earnest, the most decided, and the most uncompromising opposition.
§ Lord John Russellthe noble Lord was greatly mistaken in supposing, that it was the mere publication of their papers in a shop which rendered them liable to actions. Let him take an instance from what occurred that very day. His right hon. Friend, the Member for Pembroke, had asked him a question with reference to the transfer of the Hill Coolies to the Mauritius. Those papers relating to this subject he was going to lay on the table, and when he proposed to introduce into them matters which related to the treatment and general condition of the Hill Coolies, as well as to the conduct of their masters and employers, of the captains and agents who had brought them from India, he was asked, whether the extracts should be partially made, or should contain everything which bore upon the question. His answer was, that there should be made a full and complete statement with respect to those persons; and, if he had not done so, he did not think he should be giving that House fair grounds for their legislation. Did he say these papers did not criminate individuals? Far from it. They might revoke, if they 382 pleased, their resolution of sale. But if his right hon. Friend, having possession of these papers, were to send them to tome person to ascertain his opinion of the facts, and to know whether they agreed with his experience, that would be a public action, and his right hon. Friend, in endeavouring to obtain the means of forming a fair and conscientious opinion on a subject of legislation, would be rendering himself, as well as the person who received these papers liable to an action for libel. So little did the noble Lord, who had devoted so much time to this subject, understand the real position in which the House would be placed if they did not adhere to their privileges. He asked the noble Lord, who assented to the necessity of maintaining this privilege, how they were to assert it? The noble Lord had asserted, that he had receded from his promise, of introducing a declaratory act. His declaration on that subject was this, that if the assertion of the privileges and powers of the House (though he thought them very extensive) were attended with public inconvenience, a declaratory act was advisable with regard to the general service of the country. From that opinion he had not in the least changed; but while he was determined to preserve in any manner he could the privileges of that House, he had not seen reason to believe, that a declaratory act was likely to settle the question in the manner he at first supposed. The right hon. Member for Tamworth had offered, merely as a suggestion, that a bill should be brought into the House of Lords by the Lord Chancellor. He found on consideration, and on weighing the information which he had received, that there were obvious objections to that course. He was determined, if he adopted the plan of bringing in a declaratory bill, to do so with the greatest possible consideration, and to give it the best chance of success. He would not expose their privileges to be farther weakened by the course which he wished to adopt for the purpose of securing them. Therefore, while he said, that he was still favourable to a declaratory bill, and that if he saw a fair chance of carrying such a bill without injury to their privileges he should himself propose it, he must tell the noble Lord, that in the present state of the question, a declaratory bill being an uncertain mode of proceeding, inasmuch as he did not know 383 how it might be received by persons of great weight and authority in the House of Lords, he was not prepared to say, that their ancient mode of vindicating their privileges by commitment should be abandoned. They were told at the commencement of these proceedings, that their resolution would be mere waste paper if they did not execute it by proceeding against all those guilty of a breach of their privileges. This was said, though it must have been clear that the House had the power of discriminating between the cases of various individuals. But when the case before them was that of a person who had made it a trading speculation—at any rate the main object of his profession—to bring a series of actions, one after the other, for the purpose of calling their privileges in question, then he said, if they did not persevere in their resolution, that contempt to which they were told they would expose themselves, would be incurred. He might be told, and told with great truth, that it was a disagreeable proceeding to commit persons in the low and unhappy condition of the witness. But he must say, that the person chiefly to blame was the attorney who employed this man to commit an offence against their privileges. Mr. Howard had power over this man which was tantamount to the authority of a master. Mr. Howard ought not to employ him to disobey the law, and it was not their fault if, having violated their privileges, he had thought himself obliged to take that step as the servant of another. He was quite sure, that if a day labourer at any quarter session were to urge as an excuse for an offence, that his master had told him to commit it, that he would not be listened to for a moment. He should be very glad for many reasons—for the part he was obliged to take on the question, for the time consumed in these debates, and for the public inconvenience these proceedings occasioned, if some mode could be devised of settling the question of their privileges; but he was persuaded, if they now declared they had no power of enforcing their authority by commitment, they would not only fail in their present proceeding, but by no other proceeding could they obtain a recognition of their privileges.
§ Mr. Inghamthought the noble Lord was mistaken as to the opinion of the judges. Judge Patteson had said, that 384 every Member enjoyed the right of communicating to any person any document published by the authority of the House; and why? Because the criterion of a just privilege was this—the right of doing all that should enable them to perform their duty in that House. This right had been admitted by the judges in the case of Stockdale and Hansard. They said the question was not sale or no sale, but one of indiscriminate circulation. It was, therefore overlooking the judgment to say they denied the privilege of publication. They allowed this so far as was necessary to the exercise of the functions of the House.
§ Mr. Andrew Whitesaid his constituents supported him in the view he took of this case, namely, that the majority were right.
§ The House divided:—Ayes 135; Noes 53: Majority 82.
§ [The persons who voted on this division were the same as those who voted on the following one.]
§ The Solicitor-Generaltrusted, the imprisonment of the party would be but short; but at the same time the effect of it would be to let the attorney know, that he could no longer use this man as an instrument in his proceedings, nor could he conceive, that there would be any reason for the discharge of Pearce from his employment merely because he was incapacitated from fulfilling the orders of his master by his imprisonment in that House. Mr. Howard might release him from the particular duty, and then Pearce could present a petition, couched in respectful terms, to induce the House to take his case into consideration. The hon. and learned Gentleman moved, "That Thomas George Johnson Pearce, having been guilty of contempt, be committed to the custody of the Sergeant-at-Arms."
§ Sir E. Sugdensaid, that he must take the same course in this question as he had done in the previous one. He would certainly divide the House on it, and whenever there was a motion for a similar commitment of innocent individuals he would resort to the same course of opposition. The Solicitor-general plainly told them he would wish the attorney's clerk to make an admission of his error, and ask for mercy. Of course, being a poor man, and left without subsistence, he would be happy to make it to rejoin his family; but what value would it be to them? The consequence would be that attorneys 385 bringing similar actions would send all the ticket-porters in the Temple, Gray's Inn, and Lincoln's Inn, instead of their own clerks, to serve their summonses. Then his hon. Friend would have to take them all up, call them to the bar of the House, tell them that they had committed a breach of privilege, and order them into custody. He wished him joy of his prospective occupation. [Interruption.] Certainly they had lost much time. Heaven have mercy on the poor wretch subject to the decision of such a tribunal; I thank God, said the right hon. Gentleman, that I am not liable to its judgment. Are hon. Gentlemen aware that this is a judicial tribunal, and that they are sitting on a case of the personal rights and liberties of a fellow-countryman? They should at least be anxious to show some appearance of moderation—that they are not governed by passion in their peremptory legislation. That he had expressed himself warmly he had no doubt; that he felt warmly he knew; and that feeling was excited by the want of attention which had been exhibited to those judicial functions which they were called upon to exercise. If they had heard him patiently, one-third of the time which he had then occupied would have been spared.
§ Mr. W. Miles moved to substitute for taking Mr. Pearce into custody, that he be called to the bar, reprimanded, and discharged.
§ The House divided on the original motion; Ayes 134; Noes 54; Majority 80.
| List of the AYES. | |
| Abercromby, G. | Collins, W. |
| Adam, Admiral | Conyngham, Lord |
| Aglionby, Major | Corbally, M. E. |
| Anson, Colonel | Currie, R. |
| Archbold, R. | Clay, W. |
| Baring, rt. hn. F. T. | Craig, W. G. |
| Barnard, E. G. | Dalmeny, Lord |
| Beamish, F. B. | Divett, E. |
| Bellew, R. M. | Dundas, F. |
| Bernal, R. | Dundas, Sir R. |
| Bewes, T. | Elliot, hn. J. E. |
| Blake, M. J. | Ellis, W. |
| Blake, W. J. | Evans, W. |
| Bodkin, J. J. | Fitzalan, Lord |
| Bridgeman, H. | Fitzpatrick, J. W. |
| Brockleburst, J. | Fleetwood, Sir P. H. |
| Brodie, W. B. | Fort, J. |
| Brotherton, J. | Fremantle, Sir T. |
| Browne, R. D. | Gordon, R. |
| Busfeild, W. | Goulburn, rt. hn. H. |
| Callaghan,D. | Graham, rt. hn. Sir J. |
| Campbell, Sir J. | Grattan, J. |
| Greg, R. H. | Protheroe, E. |
| Greig, D. | Pryme, G. |
| Grey, rt. hn. Sir C. | Redington, T. N. |
| Grey, rt. hn. Sir G. | Rich, H. |
| Guest, Sir J. | Roche, E. B. |
| Hall, Sir B. | Roche, W. |
| Handley, H. | Russell, Lord J. |
| Hastie, A. | Rutherfurd, rt. hn. A. |
| Hayter, W. G. | Scholefield, J. |
| Hector, C. J. | Seale, Sir J. H. |
| Hepburn, Sir T. B. | Seymour, Lord |
| Hobhouse, rt. hn. Sir J. | Sheil, rt. hn. R. L. |
| Hobhouse, T. B. | Smith, B. |
| Hodges, T. L. | Somers, J. P. |
| Hollond, R. | Somerville, Sir W.M. |
| Hope, hn. C. | Stansfield, W. R. C. |
| Howard, F. J. | Stewart, J. |
| Howard, P. H. | Stuart, Lord J. |
| Howard, Sir R. | Stuart, W. V. |
| Howick, Lord | Strickland, Sir G. |
| Hume, J. | Stock, Dr. |
| Humphery, J. | Strutt, E. |
| James, W. | Tancred, H. W. |
| Langdale, hn. C. | Townley, R. G. |
| Lockhart, A. M. | Thornley, T. |
| Lushington, C. | Troubridge, Sir E. T. |
| Lushington, S. | Tufnell, H. |
| Lynch, A. H. | Vigors, N. A. |
| Macaulay, rt hn. T. B. | Vivian, J. H. |
| Macleod, R. | Waddington, H. S. |
| Martin, J. | Wakley, T. |
| Maule, hon. F. | Wallace, R. |
| Melgund, Viscount | Warburton, H. |
| Miles, W. | White, A. |
| Morpeth, Viscount | Wilde, Sergeant |
| O'Brien, W. S. | Williams, W. |
| O'Connell, D. | Williams, W. A. |
| O'Connell, J. | Winnington, Sir T. E. |
| O'Connell, M. J. | Wood, G. |
| Parker, J. | Wood, B. |
| Parker, R. T. | Wynn, rt. hon. C. |
| Parnell, rt. hn. Sir H. | Wyse, T. |
| Pechell, Captain | Yates, J. A. |
| Pendarves, E. W. W. | |
| Philips, M. | TELLERS. |
| Pigot, D. R. | Stanley, hon, E. J. |
| Pinny, W. | Steuart, R. |
| List of the NOES. | |
| Alsager, Captain | Hamilton, Lord C. |
| Ashley, Lord | Henniker, Lord |
| Attwood, W. | Holmes, hon. W. |
| Bailey, J. jun. | Hotham, Lord |
| Baring, H. B. | Hurt, F. |
| Broadley, H. | Ingestrie, Visct. |
| Bruges, W. H. | Ingham, R. |
| Dalrymple, Sir A. | Knatchbull, right hon. Sir E. |
| Dowdeswell, W. | |
| Duke, Sir J. | Knox, hon. T. |
| Duncombe, T. | Law, hn. C. E. |
| Eaton, R. J. | Leader, J. T. |
| Filmer, Sir E. | Mackenzie, T. |
| Fitzroy, hon. H. | Mahon, Viscount |
| Gladstone, W. E. | Packe, C. W. |
| Godson, R. | Pakington, J. S. |
| Goring, H. D. | Pemberton, T. |
| Grimsditch, T. | Plumptre, J. P. |
| Polhill, F. | Somerset, Lord G. |
| Praed, W. T. | Stanley, E. |
| Pringle, A. | Sugden, Sir E. |
| Pusey, P. | Talfourd, Sergeant |
| Richards, R. | Verner, Colonel |
| Rolleston, L. | Wodehouse, E. |
| Round, C. G. | Wood, Sir M. |
| Round, J. | Wood, Colonel T. |
| Scarlett, hon. J. | TELLERS. |
| Sibthorp, Col. | Darby, G. |
| Smith, Sir G. H. | Kelly, F. |
§ Speaker to issue his warrant to commit. Mr. Pearce to the custody of the Sergeant-at-Arms.