§ The Duke of Richmondwished to call the attention of their Lordships to a petition relating to privilege. It was from Thomas Baker, of Albion House, Great Church-lane, Hammersmith, formerly superintendent of the C division of the Metropolitan Police Force, but now retired upon a pension. It stated, that he had been called upon to attend and give evidence before their Lordships' Select Committee on the Laws relating to Gaming; and that a person of the name of John Harlow had commenced an action for damages against him for words spoken upon that occasion; that John Harlow intended to proceed to trial on the 31st instant, at the Croydon assizes. The petitioner had not pleaded to the action, but prayed their Lordships to take the premises into consideration, and to grant him such protection as might seem meet. The noble Duke observed, that Mr. Baker had not volunteered his evidence, but had been called upon to give it, having been inspector of that division of the Police, whose duty it was to watch the gambling-houses in the district. He had been examined upon oath, and, under the sanctity of that oath, had no doubt spoken the truth. The noble Duke said, that he had known Inspector Baker for a great many years, and he had served not only during the Peninsular war, but at Waterloo, and he believed that a more honourable man did not exist. It did not become him, not being a law Lord, to offer any opinion on the question; but he begged to be informed what course it was fit, under the circumstances, to pursue?
The Lord ChancellorIt is perfectly clear that if the statement contained in the petition be true, this action cannot be sustained. The petitioner alleges that the words, for the using of which the action has been brought, were spoken by him before a Committee of your Lordships' House. I believe an indictment may be maintained for perjury against a party who has sworn falsely before a court of justice; but I apprehend it is perfectly clear no action can be sustained for words spoken by a witness in evidence before any such court. But that is not the question at present—the question is, whether, under the circumstances disclosed by the petition, we should protect the defendant. It is stated in the declaration that the words were spoken "in the presence and hearing of the Committee." It 293 is possible, therefore, that the plaintiff may represent his case to be of this description, that the defendant had repeated the words in the presence and hearing of the Committee of the House, and yet may not have been at the time speaking as a witness upon oath. I should recommend your Lordships to appoint a Committee for the purpose of searching for precedents to regulate our proceedings. Circumstances make it incumbent on your Lordships to attend more particularly to this matter, because we are ourselves a court of justice in the last resort. If this case should go on, it may ultimately come before us for decision as a Court of Appeal. I, therefore, beg to move that a Select Committee be appointed to search for precedents, and that the said petition be referred to such Committee.
Lord CampbellI move, my Lords, as an Amendment, that the plaintiff and his attorney be summoned to attend at the bar of this House. In my opinion there is no occasion for any Committee—no Committee can be of the slightest service. There is no doubt that you have here an action brought against a witness, for evidence given on oath before a Committee of your Lordships' House. I entirely agree with what has been laid down by my noble and learned Friend, that no such action in point of law can be maintained; but shall you allow a witness who has been summoned before your Committee to be harassed by such an action? Nay, more my Lords, will you allow your privilege of summoning witnesses, and of examining them before a Committee, to be submitted to any Judge who may happen to sit on the trial of that case? I do say, my Lords, that if you are prepared to imitate the example set you by your ancestors, you will immediately interfere, and put a stop to this action. The most recent case on the question of this privilege which has occurred before your Lordships' House was one which took place during the time when that illustrious Judge, Lord Eldon, presided on the Woolsack. It arose out of an action brought against one of your messengers for taking an umbrella belonging to a visitor, who was standing at your Lordships' bar when the House was sitting as a court of justice. Upon the Motion of Lord Eldon, the plaintiff and his attorney, who had commenced an action before the 294 court of requests, were summoned to the bar, and informed, according to your Lordships' determination, that they would both be committed if they did not at once abandon all legal proceedings. I cannot doubt that your Lordships are now prepared to summon both this plaintiff and his attorney at your bar; and if it shall turn out that the action is brought for words spoken by the witness in evidence before your Committee, that you will commit to prison the plaintiff and his attorney, if they persist in prosecuting the action. It will be utterly impossible for you to exercise your iniquisitorial powers, unless you protect the witnesses in the evidence they give. The Committee in question was a most important one. It was to inquire into the frauds alleged to arise from gaming. There were many witnesses examined, and many transactions inquired into, and a great deal of fraud and dishonesty disclosed. If any person is permitted to bring an action against a witness who should have disclosed that person's infamy, in what situation would the witness stand, and in what a situation would your Lordships be? You would ever after deprive yourselves of the power of instituting any such inquiry. Your privileges are now assailed in the most alarming manner, and unless you make a resolute stand they are irrevocably gone. I have heard it suggested that the witness might have repeated these words at another time; that after having given evidence before the Committee he might have repeated in the presence of the Committee, not upon oath, and not judicially, what he had said before, and therefore that might be considered malicious, and sufficient to form a ground of action. But in his petition the party declares that he never did use the words unless when he was examined upon oath before the Committee. It, however, may be learned from the plaintiff and his attorney, if called to the bar of the House, what is the real ground of the action. If it be for words spoken on some other occasion, then let the action proceed, and let a jury give a verdict upon it; but if it should turn out, as I have no doubt it will, that the action has been brought for words spoken by the witness when on oath before the Committee, then I implore your Lordships, in accordance with all the precedents you have ever acted upon, that you will at once interpose to protect this witness. In 295 the present case there is not time for any Committe to inquire for and examine into precedents. The trial is to take place on the 31st of July in the county of Surrey; and I have no doubt he will be called upon to plead in four days from the time declaration is filed. Before the Committee have made their Report, a judgment may be obtained, and a verdict for 1,000l. may be given by a jury against the defendant; and this because he has obeyed your Lordships' summons. It may be said that the defendant may justify; but how? Are you to expose him to the same peril to which all your own privileges appear now to be exposed? My Lords, I shall move as an Amendment, "That the plaintiff and his attorney be summoned to appear at the bar of this House to-morrow at five o'clock."
§ The Earl of EllenboroughI entirely agree with the noble and learned Lord as to the course it is essential, for the maintenance of the dignity and privileges of this House, and of its authority, for your Lordships to pursue, and I shall give my vote in support of the noble and learned Lord's Amendment.
Lord BroughamMy doubt is this, and I fairly state it to your Lordships. This is the first time that the question has ever been brought before the House. We have not had one quarter of an hour by the clock to consider what course it would be the best for us to take. We have not had one quarter of an hour to look into precedents. We are surrounded by very serious difficulties. We have at present the statement, an donly the statement, of the party against whom the action is brought. If you look at that statement, he does not himself say that the action is brought for words spoken by him in giving his evidence upon oath. He says, he believes it is for words spoken by him in the presence and hearing of the Committee. My noble and learned Friend on the Woolsack has suggested that it does not at all follow from necessity that those were words used by him in giving evidence before the Committee. Though he says (it is his own assertion, no doubt), that he never did, except upon the occasion of being examined before the Committee, say anything respecting Mr. Harlow, still he may have done it upon that occasion without being at the moment giving evidence on oath. My noble Friend opposite (the Earl of Ellenborough) is ready to denounce 296 this as a breach of privilege. I have had some experience on questions of privilege. I was present and took part in the argument of the great case of privilege at your Lordships' bar; and I will venture to say that whoever has the most considered the question of privilege will find the most difficulty in reconciling the conflicting decisions and precedents on the subject, and especially in deciding, as my noble Friend, who is not a member of the profession, has done off hand, that this is a breach of privilege. Taking such extremely breathless haste as our guide is never safe. We ought never to come to a hurried decision when a little time for deliberation might make our proceeding more useful and satisfactory in its results. In all cases arising in the House of Commons, the first thing done is the adoption of the course suggested by my noble and learned Friend on the Woolsack—namely, the appointment of a Committee to search for precedents. You are not like the House of Commons, a mere inquisitorial body. You are a high criminal court of justice in the last resort. The matter propounded is, that you shall call the plaintiff and his attorney before you, with the manifest intention, that if you are satisfied, on examining those parties, that this action is brought for words spoken under certain circumstances, you will stay the action by exerting your power of force against the author of that action. That is a great step for any court of justice to take. It is a very novel position for your Lordships to find yourselves in: that you, a court of judicature, who as a criminal court in the last resort, may have to decide this very case, should at once say "we will not allow this action to proceed." But it is said—"Only examine the plaintiff!" Is it nothing, my Lords, for a plaintiff, upon the mere application of the defendant—his adversary — to be called upon to disclose his case? But that is what you are doing, and upon what ground? Simply because the defendant tells you his story, he being the adversary of the plaintiff. I am not the man to advise your Lordships, without further consideration, to pursue this extraordinary, not to say extreme course of calling upon a plaintiff to tell you what his case is, merely because the defendant asks you to do so by telling his account of the matter. I am, above all things, for maintaining the purity and independence of 297 the administration of justice, and I believe that the privileges of both Houses of Parliament never can be safer, and never can be rested upon a more secure foundation than if they are left, like the rights and privileges of all the rest of the community — the Sovereign included — the Crown included—left to the administration of civil and criminal justice in those courts which are not political tribunals, the courts of the law of the United Kingdom.
§ Lord Cottenhamsaid: As to what course your Lordships ought to pursue, if the facts stated in the petition be correct, is a question well deserving consideration; but as to what the petitioner has stated, it appears to me he puts the matter beyond all dispute. He, in the first place, states what the declaration itself states, that the action professes to be brought for words spoken in the presence and hearing of a Committee of this House. He then goes on and states, that he never upon any occasion, except upon giving his evidence before the Committee, spoke or published any such words as are charged against him in the declaration, and that he verily believes that the action has been brought for words so spoken. Of course he could not state more than his "belief," as he speaks of the reasons that actuate another man's conduct. Under these circumstances (there may not be a word of truth in it, but looking at the allegation) it does appear to be a most direct and distinct breach of the privileges of the House. Therefore, the only question is, in what way will the House assert its privileges? Beyond all doubt, the House will take as much time as circumstances will admit; but my apprehension is, that there will be no time if you do not act this evening by summoning the parties to-morrow. The mischief will have occurred before Monday. I trust your Lordships will not follow an example set elsewhere, and permit the party to plead, and thus involve yourselves in difficulties from which it may not be possible to escape. If your Lordships' privileges are to be asserted at all, it is at the time when they are first invaded. Therefore, although I am anxious to take as much time for deliberation as circumstances may admit, yet if your Lordships do not act to-day, you will, in all probability, lose the opportunity of acting at all.
§ Lord DenmanWith great respect, then, I hope your Lordships will not act at all. 298 I hope the plaintiff will be allowed to assert his right in a court of law. The evidence may have been maliciously given to his prejudice, and he may be ruined in consequence of that evidence being given. I think your Lordships, being in the last resort a high court of justice, ought to be very slow before you say to any one of Her Majesty's subjects, on bringing an action against another for an alleged injury done to him, "You shall not proceed in a court of justice to show that you have been injured, and to obtain redress for that injury." But it is said that this petitioner and witness would be harassed if this action were allowed to be brought against him. Would he not be equally harassed if he were indicted for perjury? and yet are your Lordships prepared to interfere in such a case? Would your Lordships prevent such an indictment because the party indicted came and told you that he was guiltless of the crime of perjury alleged against him, and that he had said nothing but the truth? Are your Lordships prepared, on such an allegation, to declare that you will not allow the law to take its course, nor will allow the question as to the falsehood or truth of the party's statement to be investigated by a competent legal tribunal? I think your Lordships will incur a most serious responsibility if you undertake to interfere thus without great deliberation. It will not be in my power to attend the House after this day, because I shall be obliged to proceed on the circuit. For that reason, I am induced to enter rather more fully than I otherwise might have done, into my views upon this most important question. I do not think any injury will arise to the parties from delay. My noble and learned Friend (Lord Campbell) says that all the precedents are one way, and that it will not be very difficult to find them. He mentioned but one precedent—that known by the name of the umbrella case, a precedent which I trust your Lordships will not be eager to follow when you know the facts. A person, while attending at the bar of your Lordships' House, when sitting as a court of justice, lost his umbrella, and believing that one of your Lordships' messengers had taken possession of it, he brought an action in the court of requests against the messenger. The House of Lords thought it became its dignity and sense of justice to interfere, and prevent the plaintiff from establishing his right to his property, and 299 to the fact of his having been illegally deprived of it. I cannot think that that is a case which your Lordships will feel proud or anxious to act upon. I beg to express my very great disapprobation of actions being brought for the sake of producing collisions between Parliament and the Courts of Justice—a circumstance at all times much to be deplored—actions brought for the purpose of obtaining from the prejudices or excited feelings of a jury damages which greatly exceed the amount of injury sustained. I do, at the same time, think that there is no more certain mode of encouraging such proceedings, than by interfering with a view to stop the due course of justice between the Queen's subjects by the high hand of power on the part of Parliament, under the pretence that the parties against whom such proceedings were taken were acting under its protection. I should be very slow in offering any opinion upon this case. The facts at present before your Lordships are merely ex parte. I know that the proposition before your Lordships is, that the facts be inquired into by summoning those parties to the bar who are supposed to have injured this petitioner, that is, to summon the plaintiff and his attorney. But, by summoning those parties before you, your Lordships pledge yourselves to take some course, provided certain disclosures are made; but which disclosures, I humbly apprehend, ought not to be sought for from any of Her Majesty's subjects who are only seeking to establish their rights in a court of justice. I am very unwilling to commit myself without necessity upon a point of law; but I have not the least difficulty in saying, that if this statement be true, and I have no doubt it is—if this respectable person, of whom the noble Duke has spoken so highly, has really done no more than what is stated in his petition, then I have not the least difficulty in saying, nay, it admits of no doubt, that the plaintiff cannot hold up his head in a court of justice. What! when a competent tribunal, justly held in the highest respect by the country—a Committee of the House of Lords, appointed to inquire into the necessity of making an amendment in the law of the land—when such a tribunal summons before it a public officer, a man competent to speak of the conduct of certain parties having relation to that law, and when that officer shall have fairly and fully disclosed what he knows on oath—is he to be accused as a malicious slanderer 300 because he makes that disclosure? It could not be endured for a moment: and do your Lordships believe that any court of justice would say that a plaintiff could possibly succeed in such an action, or that a witness so conducting himself should be punished? Why should it be supposed that a court of justice would overlook all circumstances of this nature? All confidential communications, that are made bonâ fide, are privileged communications; but the privileges of the House of Lords, and of your Lordships' Committees for the purpose of public inquiries, stand beyond the reach of any criminal or civil proceeding by way of action. I venture to think, although I know what has been said in another place, that there is nothing in the conduct or in the disposition of the courts that disentitles them to the credit of wishing to put down any action brought under such circumstances. But, on the other hand, is it to be maintained, if parties will vent any personal malice, or will indulge in any personal and unjust reflections to the prejudice of others, while giving evidence before a Committee of your Lordships' House, that those persons are not be pursued in order that the facts may be inquired into, and be decided upon in due course of law? But upon this more general ground—a ground which has been considered and felt at all times by those Judges who were aware of the high privilege they enjoyed, of standing between irresponsible power and those whom it was sought to make its victims—I am opposed to the undue interposition of privilege to impede the due administration of justice between subject and subject. The feeling which has actuated all those Judges who have thus appreciated their own high privilege, has been this—"We know our duty, and that duty we will perform; we will perform it without fear or favour, for the protection, not of one class, not of an individual who happens to have been a witness before a Committee either of this place or of another place, but for the protection of all; for doing equal justice to all, in order that those who are injured may obtain redress, and that those who complain that they are injured may have the right to show how and wherein they have suffered." These are general grounds, I think at least, sufficient to induce your Lordships to pause before any steps are taken. I should have thought the Motion of my noble and learned Friend on the Woolsack, if any course was to be taken on the subject, was the only course 301 that a deliberative body, with due regard to their own high station, and to the great power they possess, and the great injury they may by possibility inflict, could have taken on such proposal being made. My Lords, I venture to warn you against the notion that dignity consists in taking sudden offence, and in putting down all who question your proceedings. There may be good grounds for the statements of those who come before you for protection. Your Lordships do not possess the means of investigating the merits between the contending parties; but if those grounds exist, the assertion and proof of them will be available to the party complaining in any court of justice in the kingdom.
Lord Campbellwould warn their Lordships of the infinite importance of the step they were now about to take. If they refused the Amendment he had proposed, they would be declaring to all the world that let an action be brought against any one for what he might have said before a Committee of their Lordships' House, they would not interfere to protect him, even though he should be a Peer of the realm.
Lord Broughamhad always said that the House had the right to commit for contempt of its privileges. The courts of law had the same right. He would ask, however, if an action were brought against a witness for something which he had said upon oath in the Court of Queen's Bench, would the Lord Chief Justice call the plaintiff and his attorney before him and ask him on what account his action was brought; and if they replied "On account of what the defendant had said before you," would the Lord Chief Justice then say, "Then I commit you for contempt?" Yet that, he considered, would be tantamount to acceding to the Motion of his noble and learned Friend near him. He would only add, that if the statements contained in the petition were true, this was one of the most ridiculous actions that had ever been brought against any person.
§ On Question, That the words proposed to be left out stand part of Motion? House divided:—Content 33; Non-Content 22: Majority 11.
§ Resolved in the Affirmative. Then the original Motion being put,
The Marquess of Clanricardecontended that if they allowed their privileges to go to the courts of law, they gave up their prerogatives and submitted themselves to 302 the other courts. He wished to know with what justice they could ask witnesses to give evidence before their Committees, by which they would subject themselves to penalties such as that which the petitioner had incurred? He said penalties, because the petitioner had already incurred expenses, and which would be further increased. If witnesses were to be subject to such actions, they could not, in justice, be expected to come forward and tell the whole truth on matters upon which it was necessary for the House to be informed.
Lord Stanleyprotested, on the part of the Government, against the doctrine that the House was abandoning those persons who gave true and faithful evidence in obedience to their Lordships' orders. There could, he believed, be hardly a dissentient voice to the proposition that it was their duty to protect those persons. By the vote the House had just come to, they had not abandoned one jot or tittle of the privileges of the House; but what they had done was to abstain, on the recommendation of his noble and learned Friend, from taking a hasty course the moment a petition had been presented. They had been recommended to take some short time to examine into precedents of the course adopted on former occasions, in order to assist them in arriving at a decision upon the course to be taken in the present instance. He conceived that neither their Lordships' privileges nor the cause of those persons who had given evidence before them, were compromised, if, upon conflicting opinions being expressed by the highest authorities upon such a question, their Lordships took twenty-four hours to consider the wisest course to pursue.
§ The Earl of Ellenboroughcould not but feel apprehension if, after the Report of the Select Committee, the House should adopt the course recommended by the noble and learned Lord opposite, that a most serious effect would be produced upon evidence given in future before Committees of their Lordships' House. It was essential that evidence given before those Committees should be given without the apprehension of punishment—it was essential that it should be given without fear. If witnesses—even although they should ultimately receive indemnity—were to give evidence under the apprehension, so embarrassing and distressing to nervous minds, that they might be forced into a 303 court of justice as a result of their testimony, they would flinch from telling the truth, and their Lordships would find themselves unable to exercise one of the most important of their functions, that of extracting truth from witnesses before Committees.
Lord Broughamagreed, that nothing was more important than that evidence should be given without apprehension; but he feared their Lordships could not carry out the principle contended for by his noble Friend opposite. Suppose in this case the petitioner had given false evidence before the Committee against Mr. Harlow, the latter had only to prefer his bill of indictment before the grand jury, and, upon the bill being found, the witness would then be put upon his trial for his evidence.
§ Lord Cottenhamsaid, that the House having rejected the Amendment of his noble and learned Friend, the question before them was the original Motion of his noble and learned Friend on the Woolsack. The petitioner had stated a most distinct breach of privilege; and that having been brought under the attention of the House, they had postponed the consideration of the case to search for precedents. What were the Committee to inquire into? Into the question what their privileges were? Or into the mode of asserting them? He apprehended that both those points were perfectly clear and plain, and could not be elucidated by the labours of any Committee.
Lord Campbellbelieved, that the House would hereafter regret that his Amendment had been lost. They must now, he supposed, adopt the Motion of his noble and learned Friend on the Woolsack; but he hoped that the Committee would enter to-night upon the consideration of the question, and make their Report to-morrow, by which course only twenty-four hours would be lost.
The Lord Chancellorsaid, that so far as he was concerned, no delay should take place; but his noble and learned Friend seemed to consider that the inquiry of the Committee was much more limited than it really was. They had to inquire into the whole cause of proceeding from beginning to end; and when their Lordships considered the result of the course which had been pursued in the other House of Parliament, he would suggest a little caution, in order that they 304 might weigh the consequences of every step.
§ The Earl of Ellenboroughapprehended, that the duty of the Select Committee would only be to examine into and report to the House what had been done on former occasions.
§ The Duke of Richmondsaid, it had been suggested by some noble Lord, whether the words spoken by the petitioner might not have been in conversation with the Committee, and not as strict evidence upon oath. He (the Duke of Richmond) was chairman of that Committee, and could inform the House that the witness stood in the witness box, and answered upon oath the questions put to him, and which he was bound to answer. In an examination of the kind that took place before the Committee upon Gaming, it was necessary to put the most searching questions. With all the blackguards the Committee had to deal with, it was most difficult to get any evidence at all, except from the police, The petitioner had given his evidence in a very proper way; and it was to be hoped the House would protect him. If the minutes of evidence had not been printed, the House must have trusted to the Committee's Report. But in these cases the House sent their evidence to the other House, and they choose to sell it. No men would give evidence if they could help it, when they found they might be subject to inconvenience and pecuniary loss by so doing.
§ Motion agreed to, and Committee nominated.