THE MARQUESS OF CLANRICARDErose to call the attention of their Lordships to matters which involved a breach of privilege. He trusted that they would consider that he was justified in doing so before they went into the Orders of the Day. The breach of privilege was involved in a return which was ordered, on the Motion of Earl Grey, on the 7th of April. It would be in the recollection of the House that on the 7th of April Earl Grey made a very remarkable speech on the interesting subject of the administration of the Army, and concluded by moving for the production of certain returns. Their Lordships would also recollect that the noble Lord (Earl Grey) went into the subject very extensively, and that his speech attracted great attention, not only in this House, but throughout the whole country, and he (the Marquess of Clanricarde) thought that it might be said to have been a very useful and effective speech. But it appeared that this speech had given offence to certain subordinate individuals employed by the Government, and from this arose the irregularity in the return of which he complained. He apprehended that, when a noble Lord moved for a return of any correspondence or official papers, such a Motion must be naturally confined and directed to papers in existence when the return was ordered; and though, undoubtedly, there might be a difference in the cases in which, by Acts of Parliament, certain public bodies and functionaries were ordered to lay before Parliament, at stated times, returns, accounts, and reports, yet he apprehended that no deviation could be made in the case 479 of returns ordered to be issued from the office of the Secretary of State, so as to include anything beyond the date when the Motion was made. It would be impossible for the House to entertain such a Motion as that the correspondence of the Secretary of State for the future as well as of the past, should be produced to Parliament;—such a Motion would, he considered, be an encroachment on the prerogative of the Crown, and it would also be impossible for any Ministry to accede to such a Motion. It was perfectly clear that in this particular case, it was not the understanding or intention that the usual rule should be departed from, of producing those documents only having reference to the subject of Earl Grey's Motion, which were in existence at the time that Motion was made. The Motion of the noble Earl was an Address for a return of copies of any correspondence between the different departments of Her Majesty's Government, with respect to any additions which might have been made to the department of the Secretary of State for War and the Colonies; and, also with regard to any changes which had been made in the transaction of business relating to the administration of the Army. Their Lordships would perceive that this correspondence was under two heads, and the return had accordingly been so made. As to the first head, respecting the correspondence as to the additions made to the department of the Secretary of State for War and the Colonies, the return contained five papers, the last of which was dated on the 2nd of April, and this correspondence ended, very properly, at the time when the Address was voted by this House. He might regret that the return ended at this date, as the subject was very interesting to the House, and he hoped that they would soon have the whole of the correspondence laid before them which related to the office of a fourth Secretary of State and the division of business which had taken place with respect to the administration of the Army, consequent upon the establishment of a fourth Secretary of State; but yet it was right that the return had stopped with the correspondence dated the 7th of April. Their Lordships, would, however, be surprised to find, when they came to the second head, under which the return was made, to find that there were, in the ten papers of which the return consisted, no less than three of the most important dated subsequent to the day on which the return was 480 ordered; and that the whole of these papers, from the way in which they were numbered and laid before the House, were avowedly and declaredly, as well as in substance, an answer to the speech made by Earl Grey. He (the Marquess of Clanricarde) thought that it was contrary to the privilege of this House, contrary to decorum, and offensive to the dignity of the House, that a subordinate officer of the Government, when a return was ordered, instead of confining himself to his duty in preparing the return as ordered, should occupy himself in preparing an answer to a speech, and then deliver it in the way of a return to this House of Parliament. He knew that certain public functionaries, Commissioners, and others, frequently in their Reports noticed transactions and debates which had taken place in Parliament, with a view of correcting errors which might have arisen; but the debates referred to were those of past Sessions; but these being Reports made to the Crown on their duties, by those who executed them, were different to the case of a return ordered for a specific purpose, and limited to a certain object. He thought that he need not point out to their Lordships that this was a matter which might be a breach of privilege, and that it was not only in derogation of the dignity of this House, but that it might be very inconvenient as a precedent, if it were to be established as such. The House would be at once convinced of the justice of the complaint, if he read a few lines from the second return. The first paper under the second head of the return was the copy of a letter from Sir C. Trevelyan to the Duke of Newcastle. It was dated from the Treasury on the 9th of May, Lord Grey's Motion having been made on the 7th of April, and in it would be found the following statement—
My Lord Duke,—The officers of the Commissariat feel that that branch of the public service has been unjustly dealt with in a recent debate in the House of Lords.He thought it would be difficult for their Lordships to find any document so commencing introduced in any return to this House. The avowed intention of the noble Earl (Earl Grey) was to condemn the existing system by the exhibition of its pernicious results; so that, if any of their Lordships thought proper to propose a change in the Administration of the State, he must be prepared to have his speech answered, not by the Minister re- 481 sponsible for the conduct of such a department, but by a letter addressed to the Minister by a subordinate in the department, to be laid upon the table of the House in a return. The letter to which he alluded might have formed a very good brief for a speech to be made by a Minister on a subsequent Motion; nor would there have been any objection to such a letter, a little corrected in its wording, being laid before the House; but he complained of its being included in a return ordered to be made a month before the letter was in existence. The letter went on to say that, since 1840, several improvements had been made in the Commissariat Department, and then it stated that—We think it hard to be held up to our countrymen as a helpless body in administering a department on which the success of the Army depends. I beg to be forgiven for giving the following instances in support of What I have stated.He had read this to show the way in which the return had been framed in order to support the statements of the writer in answer to Earl Grey's speech—a purpose which was evidenced by the fact, that, though some of the papers were dated as early as February, the first paper given was dated the 9th May. The House must see that such a course was not only inconvenient, but wholly unjustifiable in the present instance; for, though he was not there to defend Earl Grey, yet he must say in that remarkable and powerful speech the noble Earl referred to every branch of the administration of the Army, and only referred to the Commissariat as a considerable branch of that service, and he commenced his speech by saying that he had not made an attack on individuals, but on the system; and he closed his remarks by saying that though many of the individuals under the system were eminent and praiseworthy men, yet it was impossible such a system could be well administered, however praiseworthy and eminent might be the individuals employed. If the contrary, however, were the case, it would be no excuse for the course pursued; for this was not a question between Sir C. Trevelyan and Earl Grey, but one between the House and the department of the Government bound to furnish the returns ordered by time Crown in consequence of an address from this House. He did not know how this matter should be dealt with, and would rather leave it to their Lordships to decide; but it seemed 482 to him that if such a case were allowed to become a precedent, it would be a very mischievous one, as well as derogatory to the dignity of that House.
§ THE DUKE OF NEWCASTLEsaid, that his noble Friend had objected to the return on two grounds—firstly, because it contained papers dated subsequently to the day on Which the return was ordered; and secondly, on the ground of a supposed breach of privilege of the House, by reference to the notice which had been taken of the debate that had occurred in that House. As to the first objection—as to some of the papers being dated subsequent to the day on which time Motion was made—undouhtedly, if they adhered to the strict rule in such cases, an irregularity had been committed; but at the same time he had reason to believe, though he had not had time to look back for precedents, that such a course was not without precedents in that House, and he was sure that it was not without precedents as regarded the other House of Parliament. This partly arose from the fact that returns would be very imperfect unless such a course were sometimes followed. The noble Marquess had referred to the first part of the return, which contained a paper of the 7th April, the very day the Motion was made, and observed that that was very proper; but supposing the Motion had been made on the preceding day, the 6th April—would it not have been exceedingly inconvenient that the letter of the 7th April, completing the correspondence, should have been omitted? Although the course might not be strictly correct, for the sake of convenience the rule was departed from, and he had reason to believe it was not of unfrequent occurrence. As regarded the second and more important objection, he was in a position to he enabled to state the whole of the facts with reference to that occurrence. The Parliamentary returns from the Colonial Office were, as everybody knew, very voluminous in every department, and much more so than Was desirable for the convenience of Parliament, with a view to its being read, or the economical expenditure of the public money. The officers in that department were consequently so over worked that it was impossible for them to keep up with current orders of this House during the Session. The order for this correspondence was sent to the Colonial Office, and in the Colonial Office the returns were made up; but, in consequence 483 of the press of business, they were not made up when ordered, but, speaking from recollection, in the following month of May. The clerk, therefore, who made the return, having collected the papers having reference to it from the various officers, put them all together for his (the Duke of Newcastle's) approval previous to their being laid before the House; and he would, therefore, take upon himself the blame and the responsibility of having allowed them to be presented in the return. The responsibility of having written these papers did not attach to but as far as laying them on the table he admitted his responsibility, and he admitted they contained matter of very questionable propriety. He would tell their Lordships the ground on which he had thought they should be laid on the table. He admitted that at the time it had appeared to him to be a matter of questionable propriety, for he at once saw that a reference to debates in that House was an irregularity. If these documents, therefore, had entered into questions of policy, or had attempted to refute the general positions of Earl Grey, or of any other Member of the House, he should at once, and without the slightest hesitation, have refused to place them upon the table, however aggrieved the parties must have felt themselves by that refusal. When he read the letters, however, from Mr. Flider and Mr. Weir, he perceived that they felt that the observations of Earl Grey reflected, not upon the system of which they had been the instruments, but upon themselves; and their Lordships would find that Mr. Filder and Mr. Weir wore the officers executing the particular duties in the Colonies at the time which was referred to by Earl Grey. The question, therefore, became one of a personal character; and, considering that those letters had been sent in by two gentleman who were absent from this country, and to whom, therefore, he could not express any suggestion that they should not be laid upon the table of the House, he had decided that, in justice to those gentlemen, it would be better, on the whole, that they should be laid before their Lordships. As a test whether Earl Grey had a right to complain, he had applied the case to himself, and had asked whether, if he had made a speech in that House accusing any gentleman in the public service, he would refuse to them the opportunity of stating their own case to the public, and he certainly had felt that he 484 could not have done so. No doubt, any reference to the debates in that House, either upon the part of individuals or of the press, was a breach of their Lordships' privileges; but he was sure that they would not forget that it was a breach of privilege carrying with it no moral offence, and that it was one which was committed daily in all quarters of the country, not only by the press, but also by individuals. When he said he should have taken the same course himself, he would state that a somewhat similar case had occurred to himself not long ago, when he answered a question which had been put to him by the noble Earl (the Earl of Derby), with respect to the name of the contractor who had supplied some bad hay to the troops going abroad. Having obtained the name from a friend at the bar of the House upon the instant after the question had been pressed upon him, he gave it. The next morning he received a letter from the gentleman whose name he had given, strongly, but most courteously and most justly, complaining of the injustice which had inadvertently been done to him by his name, which was not that of the real party, having been given. Did their Lordships suppose that he had told that gentleman that he had committed a breach of the privileges of that House by writing that letter to him? Certainly not; and yet that was as much a breach of privilege as had been committed in the present case by these gentlemen having addressed letters to Sir Charles Trevelyan. What he had done upon that occasion was this—he went down to the House the next evening, and stated that, to his extreme annoyance, he had given a wrong name, and he explained to the House all the circumstances. Those were the facts connected with this case. He did not at all pretend that there had not been a technical breach of privilege; but he thought the House would agree with him that it was a matter for serious consideration whether, in the case of two gentlemen who were absent on public duty, and felt themselves aggrieved, and who were entitled to address letters on the subject, he should have withheld these letters, pertinent as they were to the subject to which the Motion referred.
THE EAFL OF DERBYthought that the case of the hay contractor was entirely different from the present. Not disputing the hardship which might occasionally arise to individuals from their conduct being called into question in that House, when they 485 had no opportunity of making a defence, he could not help thinking that the noble Duke would have done better if, instead of the course which he had taken, he had adopted that which he had pursued in the case of the hay contractor, and had gone down to the House, and, in his own character as a Member of the House, had stated that he had received explanations which, in his place in Parliament, he was ready verbally to communicate. Their Lordships would see that nothing could be more different than the case of such an explanation so given by the Minister, whose voice was the proper organ for their defence on the part of the person aggrieved, and the course which had been pursued in the present case, when private letters were in the first instance addressed to a subordinate officer of the Government—when that subordinate officer gave to those letters a public character by accompanying them with comments of his own—and by officially sending them in to a public department—and when he finally obtained the sanction of a Minister of the Crown to lay that correspondence, with comments upon a discussion which had taken place in that House upon their Lordships' table. The noble Duke had stated that this had been a matter of consideration with him, and that as it related to private individuals, he had thought it desirable to lay the documents upon the table, even at the risk, as the noble Duke had said, of "technically" violating the privileges of the House. He (the Earl of Derby) contended that this was more than a technical violation of the privileges of the House, and that it was one which, if sanctioned by the Ministers and not remarked upon by the House, would lead to the most serious inconvenience, and not improbably might greatly endanger the freedom of speech in that House, which was so essential to the proper discussion of matters brought before their Lordships' attention. The noble Duke treated it as a mere technical breach of privilege, the strict observance of which would have been attended with inconvenience; but that inconvenience might easily have been obviated by an oral statement. The return, in its present shape, was most objectionable, and he could not but regret that such letters should have been written, and still more that they should have been made issued in so authentic a form, and with the sanction of the Government.
§ EARL FITZWILLIAMagreed with the noble Earl who had just spoken that it was 486 not merely a technical breach of privilege, but a very serious one, if Her Majesty's Ministers, in giving what they professed to be a return, laid an argumentative paper upon the table proceeding from some inferior officer, and written subsequent to the return being ordered. He confessed, on looking at these papers, that he could not but entertain some little curiosity to see the letters to which those that had been published were the answers; because it was quite clear to him that these commissaries must have something else to do than to read the accounts in the Times of their Lordships' debates, and that they had not been made acquainted with those debates and with the speech of his noble Friend on the 7th of April merely through the medium of the public papers. It was quite clear that there must have been some other communication with those gentlemen, and he should be inclined to move for a copy of that communication, unless the noble Duke the Secretary for the War Department would acquiesce in the suggestion that the papers should be withdrawn from their Lordships' table, and the return placed there in an amended form.
§ THE DUKE OF NEWCASTLEsaid, that as this was a matter which entirely affected the concerns of their Lordships' House it was not one for the Government to take any course in; and if it were the general opinion of the House that the paper ought to be withdrawn, he could only say, upon his own part, and on the part of the Government, that he should not have the slightest objection to it. Perhaps his noble Friend would make a Motion that the paper be withdrawn.
§ THE EARL OF ELLENBOROUGHThe noble Earl cannot make a Motion of that sort with respect to a return which has been presented in reply to an Address to the Crown.
§ THE DUKE OF NEWCASTLEsaid, that that of course was a matter of form which must be attended to. All he said was, on his own behalf and on behalf of the Government, and admitting the responsibility which attached to himself, that no opposition should be made to any Motion which might be considered desirable in order to vindicate the privileges of their Lordships' House. His noble Friend had stated that no formally personal attack had been made upon those two gentlemen. He readily admitted it; but that was a subject upon which those gentlemen must be allowed to feel for themselves, and it must be re- 487 membered that they were the gentlemen who had had the discharge of the public duties in question at the time of the transaction to which the noble Lord had referred, and that they felt, in consequence, that their characters were at stake. His noble Friend on the cross-benches (Earl Fitzwilliam) had stated that it could be distinctly seen that the letters from Mr. Filder and Mr. Weir were answers to communications which had been sent from home. All he (the Duke of Newcastle) could say was, that if they were as represented by his noble Friend, he knew nothing about it. He had never called for any explanation from any human being, and he had been no party to any such transaction, if it had taken place. He had seen nothing of them until they were communicated in an official form by the Treasury to the Colonial Office.
§ LORD PANMUREreminded their Lordships that he had taken part in the debate upon the 7th of April, when these returns were moved for, and had urged the Government to take some steps whereby the management of the Commissariat should be removed out of the hands of the Treasury and placed under the control of the Secretary of State for War. He thought that a most clear proof was now afforded that the sooner they did that the better, because it appeared from these papers that Sir C. Trevelyan was, de facto, the head of the Commissariat Department, while the real head of the Treasury did not appear to have anything to do with the matter. There was sufficient to induce their Lordships to ask the Government to arrange, without delay, for the new Secretary of State for War taking charge of those departments which belonged to the administration of the Army. If that were done, there would always be a high officer in the House ready to stand forward in defence of his subordinates if their conduct were impugned, and there would be an end to inferior officers interfering and commenting, as Sir Charles Trevelyan had thought proper to do, upon debates taking place in their Lordships' House, with which he had no concern.
§ THE EARL OF ELLENBOROUGHsaid, that it was inconvenient, when they were dealing with a question of privilege that they should travel into the much wider and not less important question of what ought to be the duties of the Commissariat. He was of opinion that the proposal to withdraw the paper was a very proper one; 488 but it should rest with the noble Duke himself to withdraw it, inasmuch as it had been laid upon the table by him in reply to an Address to the Crown. It was a very important question as a matter of privilege, and the inconvenience would, he was convinced, be found to be very great if papers were presented as returns to an Address of a date subsequent to the date of the Address. If other papers should be discovered which had a bearing upon the subject, but which were of a date subsequent to the order, the proper course would be to make a supplementary order, whereby the whole object would be attained without being open to any objection. It would be extremely inconvenient, however, to admit, as a precedent, when papers were ordered relating to a particular department, that they should be altogether of a prospective character.
§ THE DUKE OF NEWCASTLEsaid, that as the feeling appeared to be so general, He had no hesitation in stating that he would, with the least possible delay, lay upon the table of the House an amended return in substitution of the present one.