§ Mr. Abercrombyrose, and addressed the House to the following effect:
Sir; a sense of the duty which I owe to myself as an individual; a sense of the duty I owe to the House of Commons, as one of its members, and a sense of the duty which I owe to the profession to which I have the honour to belong, concur to impose upon me the task of complaining to this House of one of the most gross and unwarrantable attacks that was ever made on the freedom of debate in this House, and made from the seat of public justice, by the lord high chancellor of England. When, Sir, I shall have detailed to the House, the means by which I became informed of the statement made by the lord chancellor to which I allude—when I shall have described the evidence by which I propose to prove to the complete satisfaction of the House, that the words attributed to the lord chancellor were actually spoken by him—when I have stated what the lord high chancellor of England said, and when I have stated what I myself said, then the House will he better able to follow the conclusions which I propose to draw from the occurrence. I shall, therefore, Sir, proceed to detail the circumstances, of that occurrence; only entreating the House to favour me with their attention; because I can assure them that the subject of my statement and observations is not more interesting to me as affecting my personal character, than it is interesting to them as affecting their privilege of freedom of debate.
On last Saturday morning, Sir, I happened to be in the court of Exchequer. A person there, with whom I have no intimate, acquaintance, but of whose accuracy, as well as of whose character and honour, I have no ground for entertaining the slightest doubt, addressed to me these 572 expressions; he came up to me and said, "Mr. Abercromby, I have just heard a reference from the lord chancellor, to what you said in the House of Commons on Mr. Williams's motion." I then asked him what it was that the lord chancellor had said? He replied, "The lord chancellor imputed to you, that you had sent forth an utter falsehood to the public." I asked him, if he was sure that he laboured under no mistake on the subject? His answer was, "Certainly not. The lord chancellor referred to a gentleman with a gown on his back, and it could have been only you." On receiving this information, I felt, as I am sure every hon. gentleman around me would feel under similar circumstances. I proceeded immediately to the Court at Lincoln's Inn, with the object of obtaining a more exact statement of what had taken place. For that purpose I was going up to address the first counsel whom I saw, in hopes of gaining from him some information, when I accidentally met a shorthand writer, who is employed to attend the courts of justice, and to report their proceedings, for the public prints, and who said to me, "Mr. Abercromby, have you seen what the lord chancellor said of you this morning?" I immediately asked the short-hand writer to favour me with a copy of the notes which he had taken of the lord chancellor's observations. He put into my hands a report which he had written at full from his notes. In that report, I found the words "utter falsehood," underlined. I then applied to him to give me a copy of the report; but he declined doing so. I asked him, if he objected to show what he had written to another short-hand writer who was present? He assented. I showed it to the other short-hand writer, who objected only to one word, and said that the rest of the statement was perfectly true. Here is a proof of the accuracy of the information which I received. But, it does not rest here. I subsequently saw a gentleman of my own profession, of whom I may truly say, that I do not know an individual in whose honour and integrity I could more implicitly repose faith. What he told me was as follows. I stated to him what I had heard. His reply was, "I cannot vouch for the particular expression, but the statement is substantially true. The only doubt I have respecting it is, if the lord chancellor used the words "utter falsehood," or the words "another 573 falsehood."—Now, Sir, there is little difference between the two expressions; but, of the two, the words another falsehood" are the more offensive, as they imply that falsehoods had been before spoken on the subject. After an interval of several hours, and when I had had sufficient time for reflection, I went again to the court of Exchequer, where I saw the same gentleman whom I had seen there before, to whom I addressed these words: "Are you sure that lord Eldon imputed 'utter falsehood' to me?" The answer was: "Of that I have not the smallest doubt." "Have you any doubt that those words were intended to apply to the individual who now addresses you?" The reply was clear and explicit. "They could be intended to apply to no one but you-The reference was to the debate on Mr. Williams's motion. Besides yourself, there were only two individuals with gowns on their backs, who took part in that debate—the hon. member for Win-Chelsea, and the hon. member for Lincoln. But they did not follow the line of argument adverted to by the lord chancellor. It is equally obvious, that you did; and therefore, that the observations in question were meant to apply to you." I then said to him, "Have you reason to believe that they made the same impression on others, and were understood by them in the same sense?" His answer was "My opinion must have been the opinion of every person present, who was at all acquainted with the details of what had passed in the House of Commons." On that evidence, Sir, my judgment is founded. Sir, I know that lord Eldon is a man to be treated with respect, and, like every other man, with justice. In the course of that very morning; immediately, indeed, after I became satisfied of the truth of the statement which I had heard, I formed, without consulting with any human being, my resolution with respect to the proper course to pursue. I went to a gentleman, an hon. and learned member of this House, who, I knew, had frequent opportunities of communication with the noble and learned lord; and I said to him:—"I come to you now, in order that you may be able to inform the individual concerned, what I intend to do. I am solely and exclusively governed by a sense, of the injustice and indignity that I have experienced. I have to ask the favour of you to comply with this request. I shall, certainly 574 take time for calm deliberation, before I make up my final resolution; but, unless you hear of my change of determination before to-morrow, I beg you will go to lord Eldon, and communicate to him that it is my intention to complain to the House of Commons of what he has said from the bench, at Lincoln's Inn; and that I requested that you or some other confidential person would inform him of that intention." This is what I took the first and earliest opportunity of stating to the hon. and learned gentleman, and I have no doubt, that either yesterday, or this morning, the hon. and learned gentleman made this communication to the noble and learned lord.
I will now, Sir, state, by means of the channel which first put me in possession of the information in question, what fell from the lord chancellor of England, of the impression of which, on every man who heard it, I leave the House to judge. I will then state what it was that I did say, or at least the principal expressions that I used on the occasion, which the noble and learned lord alluded to; and lastly, I will state the course which, as an individual, I think it proper to adopt with regard to the subject.—With regard to the first, I beg leave to read from an evening newspaper of Saturday last, what is, in point of fact, a correct printed copy of the report that the shorthand writer put into my hands, and which he had transcribed from his notes, It is as follows:—
"Erroneous notions respecting the Court of Chancery, Saturday, Feb. 28.—Lord Chancellor: As it has been represented, that the person who sits here does mischief by hearing certain motions without the signature of counsel; that is to say, when motions have been made to discharge an order of the Vice-chancellor, or the Master of the Rolls, that such motions have been brought on without the signature of counsel—I have only to state, that having been in this court since the year 1778, whenever a motion has been made before the Master of the Rolls, which he has refused to allow, or which he did allow, and upon an application to the Chancellor to vary what the Master of the Rolls had done, or to destroy it altogether; and so again, whenever a motion has been made before the Vice-chancellor, and counsel have been of opinion that the motion had been improperly granted or discharged, the party 575 has always, in all those cases, been at liberty to move again, with a view to set the matter right; and, if the signature of counsel be necessary, to alter the practice of the Court, as it has obtained since the period I have mentioned, all I can say is, that I have not a right to tax the king's subjects in that way. With respect to appeals and re-hearings, it is supposed that I have heard them on new evidence, and thereby brought discredit on some part of the Court. It is an utter falsehood! On re-hearings, it is always competent to read the evidence given in the cause, though it was not read in the Court below, either by the counsel or the judge—further than that the Court does not go. On appeals, it only reads what has been read in the Court below, and that practice I have never departed from in any one instance. Therefore, really, before things are so represented, particularly by gentlemen with gowns on their backs, they should at least take care to be accurate, for it is their business to be so."
Be it observed, that there was nothing in the nature of the business before lord Eldon, which called for or excited these animadversions. They must, therefore, have been premeditated. Subsequently, the lord chancellor is stated to have said:—"Such motions as I have referred to, have been made for half a century, and never with the signature of counsel; and yet the public are told, that the signature of counsel is necessary by act of parliament, and that I have dispensed with it."
Now, Sir, I will postpone any observations on these remarks, until I have put the House in possession, as far as I am able to do so, of what I really did say on the occasion alluded to. But first, I wish to say a few words to those who may be struck by two circumstances in the statement which I have just read; first, that no mention is made of the place in which the obnoxious expressions are supposed to have been uttered; and secondly, that no mention is made of the individual by whom these obnoxious expressions are supposed to have been uttered. Sir, I am persuaded, that lord Eldon, if it were possible that he could be here, would not himself say, because he could not venture to say it with truth, or with any regard to his own character, that the place to which he adverts, is any other than the House of Commons; and I am sure he would not deny, because he could not deny it with troth, or with any regard to his own 576 character, that the humble individual who addresses you, is the person to whom he distinctly alluded. For the House will at once see the situation in which lord Eldon would be placed, should any indiscreet friend resort, on his part, to the mean pettifogging defence, that, in the first place, he did not mean the House of Commons, and that, in the second place, he did not mean the humble individual who now addresses you. What person is safe, if such observations as these are to be made upon him by the lord high chancellor of England; and such an answer is to be received? From what place were those observations made? From the seat of justice. Is not the lord high chancellor of England responsible for what he may say from the seat of justice? Could it be endured that the lord high chancellor of England should say from the seat of justice, that which every man who hears him knows to be applied to a certain individual—that he is to accuse that individual of being guilty of "an utter falsehood,"—and then that his friends here are to deny that he intended to speak of the place, and the individual, of which every body knew that he actually did speak? I cannot, therefore, believe that such a defence as this will be made this night for lord Eldon. What is the main fact? I asserted something in this House, on the accuracy of which I will presently satisfy them. The noble and learned lord, distinctly pointing out this House, and the individual who now addresses you, imputes to me that I sent forth to the public "an utter falsehood." If this were true, Sir—or indeed if it were not true, and I were basely to acquiesce in it without endeavouring to obtain redress for such an extraordinary imputation—you could not too soon desire the doors of this House to be closed against me; I could not too soon be excluded from a seat in this House, or be stripped of the gown which the lord chancellor seems to think I have disgraced.—If, on the contrary, it can be proved, that the seat of justice has been degraded by the delivery from it of false statements and assertions; imputing to me opinions which I never either uttered or entertained; and tending to render me an infamous and degraded individual; and if all this can be done without redress, then I ask, of what use are the privileges of this House, and what must be the condition of every member of the profession of the law, who 577 either is at present, or may be hereafter a member of the House.
I am now, Sir, to repeat, what I actually did say at the time in question; and there is nothing in the whole of this transaction which is to me more unpleasant, invidious, and degrading, than that the act of any other man should render it necessary for me to give the House an assurance, upon my honour, that in re-stating what I said on a recent evening, I would not knowingly misrepresent or alter my statement; no, not if by doing so I could secure my triumph; or if by not doing so, I should give lord Eldon the satisfaction of a triumph over myself. I certainly cannot repeat the exact expressions which I used, for perhaps there are few individuals whose speeches are less premeditated than my own; but the substance of these expressions I can repeat with perfect truth and accuracy. Now, then, Sir, for the statement itself; and I entreat the House to bear in mind every part of what I said on the motion of my hon. and learned friend, the member for Lincoln, and on which it pleased the lord high chancellor of England to comment in a public court: I prefaced my argument thus: I stated, that one of the first and most important objects of inquiry which could engage the attention of the proposed commission to examine into the practice of the court of Chancery, was to inquire and ascertain, whether any effect had been produced on the practice of the court of Chancery by the creation of the court of the Vice-chancellor. That is what I opened my argument with, to the best of my recollection, and it shows its whole tendency. I then took occasion to allude to what had been the practice in cases of bankruptcy and of motions. I stated, that in cases of bankrupt petitions, when orders were made by the vice-chancellor, on which orders an appeal was afterwards made to the chancellor, it appeared to have been the practice, from the year 1813, when the vice-chancellor's court was established, down to the year 1819, to allow such appeals to be made to the chancellor without the signature of counsel; but that it appeared that in the year 1819, the practice was altered, and that the signature of counsel was required. On a statement made before lord Eldon, that an appeal from an order of the vice-chancellor on a bankrupt petition was not signed, lord Eldon decided that it should be so, and 578 the practice was thenceforwards allowed, I further mentioned, that one of the main objections which I had urged against the creation of the vice-chancellor's court, was, that it tended to increase the number of appeals, and to multiply the Chancery business injuriously. I then adverted to the case of motions. I stated that in cases of appeal from the decrees of the vice-chancellor, such appeals must be certified by the signature of counsel, which served as a security against speculative appeals; but that in cases of motion no such signatures were necessary; so that a disappointed counsel or solicitor, who had been foiled in his application to the vice-chancellor, might suddenly, and in the heat of the moment, renew his application to the lord chancellor. I also said that he could not only do this without any signature of counsel, but that he could do it, in violation of the most sacred principles of justice, by bringing his application before the lord chancellor, on a renewed motion, with fresh evidences; for that having discovered, when his application was before the vice-chancellor, the deficiencies and weakness of his case, he was able to supply those deficiencies and sustain that weakness before the chancellor, by the production of additional matter and more powerful arguments. What is the consequence? That which might be expected. That there are numerous instances of different decisions on the same cases by the lord chancellor, and by the vice-chancellor, whose opinions were thus frequently brought into collision; a thing certainly very derogatory to the respect and dignity of the inferior court.
This, Sir, is, as well as I can recollect, the tendency and substance of what I said on the occasion of my hon. and learned friend's motion. Now, let us examine a little what it is that the lord chancellor says? The lord chancellor says, that it has been the invariable practice in the court of Chancery, since the year 1778, when he first entered that court, that when appeals from refusals to grant motions had been made to the lord chancellor, it has never been required that they should have the signature of counsel. Why, so said I. On that point, therefore, it appears, not only that what I stated was not incorrect, but that it actually received the sanction of the lord chancellor himself. I said, that the signatures of counsel were not required to 579 such appeals, and I mentioned them in contradistinction to other cases, in which the signature of counsel was required. In that statement, therefore, my accuracy is in no way impeached. Lord Eldon, no doubt with a view of deriding the argument I used in this House on the subject, refers to a feature in the practice of the court of Chancery, before the establishment of the vice-chancellor's court. He says, in cases in which a motion has been made before the Master of the Rolls, which he has refused to allow, and upon an application to the lord chancellor to vary what the Master of the Rolls has done, or to destroy it altogether, the same fact exists of the signature of a counsel to the application not being required. Now, Sir, I beg to ask my hon. and learned friend, the solicitor-general, whether, speaking of the general practice of the court of Chancery, and of the amount of special motions, it seems to be considered the duty of the Master of the Rolls to hear special motions? Does my hon. and learned friend allow that it does not? Well; I now ask him, whether it is not true that the vice-chancellor hears by much the larger proportion of the special motions that are heard in Chancery? My hon. and learned friend must say "yes." I then ask the House, what consistency, or what reason there is in comparing two cases which are so dissimilar; the case of the Master of the Rolls, who rarely hears special motions, and the case of the vice-chancellor, who hears the larger proportion of the special motions that are heard? This will be further obvious when it is recollected, that what I complained of was no grievance when the Master of the Rolls heard few motions; but is a great grievance now that the vice-chancellor hears a larger proportion of motions. Is that, or is it not, a fit object for the inquiries of the commission?
So much, Sir, for that part of my argument. With respect to hearing fresh evidence on motions, it is a fact which I am sure my hon. and learned friend will not deny, that there have been many instances of motions made before the vice-chancellor on one statement of facts, and then removed before the lord chancellor, and made on another statement of facts. Prom the contemplation of such an occurrence, this plain and obvious argument arises: If the party who has been disappointed in his motion before the vice-chancellor goes before the lord chan- 580 cellor with the same facts, the probability is, that he will receive the same judgment; but if before the renewal of his motion, he provides himself with additional facts, the probability is, that the lord chancellor's decision will be different from the vice-chancellor's decision; and as it will not be generally known that that difference has been probably occasioned by the new facts, it must tend very much to depreciate the authority of the inferior court.
I have now, Sir, stated nearly all that it seems to me to be necessary to state to the House on this subject. Lord Eldon says, that motions are renewed in the court of Chancery without the signature of witnesses. So I say. Lord Eldon says, I allege that the signatures of counsel ought to be affixed to such motions. I said no such thing; and whoever asserts-that I said it, asserts, "an utter falsehood." Then lord Eldon says, that with respect to appeals and re-hearings, he does not hear them on new evidence. Not appeals from decrees, and further directions, certainly. I never said that he did. Quite the contrary. I put them in distinct contrast to motions, which I again declare the lord chancellor frequently hears on fresh evidence. I think, therefore, Sir, that the House will agree with me, that lord Eldon, at the very moment when he says, I have been guilty of "an utter falsehood," puts into my mouth not only what I did not say, but the very reverse of what I did say [hear, hear!]. The noble and learned lord altogether abstains from noticing my distinctions, and confounds that which I stated on the subject of motions with that which I stated on the subject of decrees. Lord Eldon has, therefore, falsely put into my mouth what I did not utter; and has declared, that in what I felt it to be my duty to state in my place in parliament, I imposed on the public. These, Sir, are the facts. But are there no aggravations of them? I ask when it was, and where it was, that lord Eldon uttered this foul calumny against me? Was I present? Had I any notice of the noble and learned lord's intention? Before whom did he utter the calumny? Before persons whose unfavourable opinion, if I had no means but what I derive from my profession, must effect my entire ruin [hear, hear!]. In what form did this calumny go forth to the people of England? In that of a report made by a re- 581 porter in a court of justice, attending on behalf of the public, who took down the words as soon as they were uttered, and who sent them to an office, where they? were printed before the ink with which they were written was dry. Such was the place, such was the occasion, such were the means by which the lord high chancellor of England sought to vilify an individual, one of the humblest members of his own court. If, Sir, I had chanced to be in the court at the time, what might have happened? I hope, and I believe, I should have been able to control my feelings. If, however, I had not done so, it would have been in the power of the noble and learned lord to silence me. If I had persisted in addressing him, he might have committed me to the Fleet. If the noble and learned lord had stopped me, would it not have been an act of the grossest injustice and indecency, after having calumniated a member of his own profession, and of his own court, by doing what he could to induce the public to believe, that that individual had been guilty of "an utter falsehood," to prevent him from replying to so monstrous and injurious an accusation? But, if lord Eldon had thought fit—as he could not have abstained from doing without the grossest injustice—to have allowed me to have replied upon him, what a spectacle it would have been to have seen the lord chancellor of England engaged in a controversy with one of the humblest practitioners in his own court, respecting words used in the House of Commons. Lord Eldon thought fit to impute to me, that I did not use due caution before I made those statements, which he attributed to me. In which case was the defect of caution most signal? In the case of myself, Sir, who was speaking in the presence of hon. and learned gentlemen, every way my superiors, especially in the knowledge of the practices of the court of Chancery; who, if I had been guilty of any misrepresentation, would have instantly detected and refuted it, to my utter confusion and shame? Or, in the case of lord Eldon, who, invested with all the power, and patronage, and authority of the office of lord chancellor, presumed, on the seat of justice, to take advantage of a false representation of the words of an humble individual, to pronounce upon him, without inquiry, the sort of censure best calculated to destroy his fame, and at a time when no one had the means of 582 interfering to avert the effect of that most unjust censure [hear, hear!]. We have heard a great deal, Sir, of the delicacy of lord Eldon, of his anxious desire of justice, of that amiable weakness of mind too sensitive to the fear of possible wrong to others, and too cautious to decide, lest he should decide erroneously. If this had been a case in which the right of private parties had been concerned, there would have been, no doubt, argument after argument, affidavit and supplemental affidavit, months and years would have passed, and the "too sensitive" mind of lord Eldon would have abstained from settling those claims which it is his duty to decide on. But what, Sir, was his mode of proceeding, when there was an occasion to pronounce from the seat of justice an anathema founded on a false statement of facts, to destroy the character of an individual whom he supposed to have censured himself? Then, indeed, to the just mind of the just lord Eldon, there seemed no room for caution—no time for inquiry [hear, hear!]. He at once proceeded to decide, to pronounce, and to execute his sentence. From whom, I should be glad to know, did lord Eldon receive his information? From what legitimate source did he derive it? The attorney and solicitor general were present in the House; neither of them could have given the learned lord the statement which he dared to attribute to me. My hon. and learned friend, the member for Exeter (Mr. Courtenay), and my hon. and learned friend whom I saw just now in the House, the member for Tewkesbury (Mr. Dowdeswell), were also present during my speech; and if the lord chancellor had chosen to resort to them for information as to what had passed in these walls, he would have learned how unlike what I uttered was that which he attributed to me [hear, hear!].
But now, Sir, let me ask what authority, what right, has the lord chancellor of England, or any other Judge, to undertake to comment on the judgment seat on the debates of this House. Where does lord Eldon, who is so cautious, find a precedent for this? How can he say he is not guilty of a gross breach of the privileges of this House? It is not a formal but a substantial breach of privilege, a direct attack on the security and freedom of debate, which is the only legitimate object of privilege. What is the situation of any member of this House; ff the lord chan- 583 cellor, or lord chief justice of the King's-bench, may presume to put false statements into his mouth and send him forth a disgraced, and as far as the authority of the judgment-seat can go, a ruined individual? By what tenure shall we then hold the freedom of debate, but at the will and caprice of any lord chancellor, and any chief justice? If this condition be intolerable to all the members of the House, how much more fatal must it be to those members who also belong to the profession of the law, if they are subject for what they say in this House to be denounced by the lord chancellor from the bench—if any of the judges, when any thing is uttered in the House, which touches their feelings, are to denounce in the court where he practises, a man who exists only by his honest exertions in his profession, and to destroy in a moment, by a false statement, his character, not only as a professional man, but as a gentleman and a man of honour [hear, hear!]? If the House do not protect its members from this tyranny and despotism (for what can be greater tyranny and despotism I cannot conceive); nay, if it do not secure itself against all control of this kind, if lord Eldon be allowed to extinguish any member of this House, by uttering these things of him from the judgment-seat, of what avail is the freedom of debate—particularly to any man who shall at once be a member of the House, and of the profession of the law? If the House shall think the facts which I have stated to be clearly proved (and I will adduce evidence to put them out of doubt), it must be incumbent on it to take decided and vigorous steps to rescue its own privileges, to vindicate the freedom of debate, and to put on a secure footing the independence, the spirit, and the usefulness of parliament? If, on the other hand the House pass by this gross violation of its privileges without interfering, how, I ask, can we expect that there shall remain any vestige of independence, public spirit, or usefulness in this House? If my appeal be neglected, what wrong can be offered to a member of this House, against which he can think there is any hope in calling on the House for protection? The result will be, to lay the bar of England prostrate at the feet of lord Eldon. The conduct of lord Eldon, which I shall substantiate, is a gross attack on the freedom of debate: for if I had uttered a thousand falsehoods in this House, 584 the lord chancellor of England had no right to animadvert on them on the judgment-seat. It is on this ground that I offer the conduct of the lord chancellor to the notice of the House, and if the House be prepared to pass it by, let it say distinctly that there shall be no longer freedom of debate. The course I shall take is to move in the first place, to call evidence to prove the expressions used by the lord chancellor. This being done it will be for the House to determine what step it will next take. I move you, Sir, "That Mr. Farquharson do attend this House to morrow".
Mr. Secretary Canningsaid:—Sir, there is no man who heard the hon. and learned gentleman's speech—no member of the profession to which he belongs—no one of the friends by whom he is surrounded, who is ready to make more allowance than I am for the feelings which he has evinced, or to render a more sincere tribute of praise for the moderation and propriety with which he has expressed them. He has displayed an anxiety that is highly creditable to free himself from an imputation which, as far as my testimony goes, he is not subject to; for, without being enough of a professional man to be aware thoroughly of the importance of the distinction between what the hon. and learned gentleman stated the other night, and what he elsewhere was understood to have stated, I can most unequivocally declare, that in his argument that night, the impression on my mind was, that he did not go out of his way for the purpose of throwing imputations on the lord chancellor, or of making what has happened in the court of Chancery, matter of individual blame,—and not the result of a faulty system. Such, Sir, was the impression on my mind; and if my testimony had been required, I should have been as ready to state elsewhere, as I am to state here, that there was nothing uttered by the hon. and learned member on that occasion which went beyond the fair line of discussion, or which could justifiably furnish a ground of personal offence. Admitting this, Sir, I can feel also, that the hon. and learned gentleman, strong in the recollection of his purpose at the time, and of his mode of executing that purpose, could not have avoided feeling surprise and indignation at finding his speech stamped with terms of so gross a character as those which have been applied to it. But, Sir, in his statement to the House, the hon. and 585 learned gentleman has dropped one link of the transaction; he has dropped the consideration, whether what he said justifiably was reported correctly to the lord chancellor, as if there could be nothing in the channel in which what was said here was conveyed to the noble and learned lord, which might have perverted its meaning. Here, again, as an unlearned person, I must remark, that I am not capable of discriminating the difference between what has been reported, and what the hon. and learned gentleman actually said; but those on whose knowledge of the subject I fully rely, assure me, that while in the speech actually made by the hon. and learned gentleman, there was nothing of which the lord chancellor could justly complain yet, in the report conveyed to the noble lord, there was that colour given to the hon. and learned gentleman's observations, which, though not materially different to an unprofessional eye, was false and incorrect, and calculated to excite in the breast of the judge to whom they referred, the same feeling of indignation for which he had made a not less generous allowance, when manifested by the hon. and learned gentleman. What then, Sir, is the conclusion to which the hon. and learned gentleman comes at last? That whatever is said here, and misrepresented elsewhere, affecting any person high or low, the person against whom it is directed must put up with it quietly and unresistingly? Sir, if there be any fault in what has happened, the fault is in our own practice, or rather in our own connivance; a fault which I do not indicate with any wish to see it corrected; a fault which has produced incalculable benefits to the country, but which, amidst all its advantages, has this inconvenience—that when the characters of individuals are under discussion here, the smallest variation, the most unintentional misrepresentation, of what is here uttered may barrow up the feelings of the most just and righteous man in the country, by the imputation of principles or practices which he abhors. The hon. and learned gentleman has said, that a judge had no right to take cognizance of what is said of him here. What! is it of no consequence that in courts in which a judge administers justice, he should be known to sit with clean hands? Is it unnatural that he should be anxious to refute, before those who are the best judges of their truth or falsehood, the imputations which 586 he may suppose have been levelled at him? The hon. and learned gentleman will acquit me of the charge of contending, that either on this or on any other occasion, a judge should discharge, his duty to himself without reference to his duty towards others, or that he should make observations on statements, of the authenticity of which he is not satisfied. As readily, I am sure, will be acquit me of the idea of sheltering myself under the technicality of denying, that what was said by the lord chancellor had reference to what passed in this House. But, it had not reference to it, I am sure, in the sense which the hon. and learned gentleman has attributed to it—not in the sense of a great officer of the Crown attempting to intimidate a member of the House of Commons—but of an individual, feeling, perhaps, too sensibly, for his character, after a public life of great and spotless, and irreproachable merit, and of whom it might be said, that he wore his heart upon his sleeve "for daws to peck at" and dreaded too much every trifling attack, as striking at the vitals of his reputation. It is a fault to be so sensitive—it is a fault in a public man—but it will be hard on public men, that it should be so severely visited, as the hon. and learned gentleman proposes; for I am sure that the course he points out, can lead us to little less than an accusation of the most serious kind. I certainly wish that a different course had been taken by the noble and learned lord, and that in the time that elapsed between the debate in this House, and the end of the week, he had recurred to other testimony, which might have set him right as to the words actually uttered by the hon. and learned gentleman [hear! hear! from the Opposition]. That it is to be regretted that the noble and learned lord neglected this precaution, I admit, but that he could treasure up the misstatement to take an opportunity of wreaking his vengeance on an individual, is what no man would believe of another, and what any one who knows the character of the noble and learned lord will not dream of attributing to him. [The Solicitor-general here whispered to Mr. Canning]. I have made this observation, supposing it to be true, that the lord chancellor had seen the reported observations: of the hon. and learned gentleman soon after they were uttered; but my hon. and learned friend, who is acquainted with the fact, tells me 587 that the newspaper containing the expression attributed to the hon. and learned gentleman was put into the hand of the lord chancellor only on Saturday morning, at the moment of his going into court. Then, Sir, are the hon. and learned gentleman and the lord chancellor, so situated that the character of one or the other must suffer? There is, it appears to me, an intermediate path. What the hon. and learned gentleman said could not justly have given offence, while in that misrepresentation, not wilful and not inexcusable, of the hon. and learned gentleman's observation, is to be found a justification of the warmth of the noble and learned lord. The hon. and learned gentleman has vindicated himself in the face of the House and of the country; and it would appear in him somewhat approaching to the temper which he has attributed to the lord chancellor, if he were to press his motion; and I see nothing which need preclude him from receiving the best and most substantial satisfaction, in the assurance, that what he really did say would not have excited the feelings, which the misrepresentation of what he did say, has led to the expression of. Sir, with these feelings, and to prevent the commencement of a proceeding, the termination of which we cannot anticipate, and with the fullest admission that the hon. and learned gentleman has set himself entirely right with the House and the country, I shall oppose his motion.
§ Mr. Broughamsaid—If the only parties, Sir, here this night were lord Eldon and my hon. and learned friend,—if the only objects were, the putting my hon. and learned friend in the right, and the putting the lord chancellor in the wrong, I should be satisfied that justice has been done to both parties, and that both objects have been gained; the first object by my hon. and learned friend's own speech; the second, by the admissions of the right hon. secretary, in his defence of his noble colleague—a defence, the candour of which was great, the fairness not little, and of which the moderation and the skill are equally deserving of praise. A defence indeed of the lord chancellor, it can hardly be called, it is an admission of the charge against the noble and learned lord, and an humble, he would not say submissive, and by no means injudicious speech in extenuation. But, Sir, besides my hon. and learned friend, besides the lord 588 chancellor, does it not occur to you that there is a third party, and my hon. and learned friend must forgive me for saying, a more important one than either of the others? Besides his character, across which not a shadow of a shade has been cast in the estimation of those that know him, and which now, by the confession of all, has been so unjustifiably attacked, besides this, is there not a higher interest concerned in the present question; namely the privileges of this House of Parliament?—privileges which, if the gross attack upon them that has been brought under our notice be disregarded, can exist no longer, except to be laughed at by those who hate us—to be trampled on by those who would assail us—to be found powerful only against the weak, and impotent against the powerful. Let but an editor of a newspaper be accused of encroaching on our privileges—let a reporter be accused of misrepresenting any thing that has taken place here, and of commenting too freely on his misrepresentation, it does not follow indeed that he is brought at once to the Bar (nor is this the stage in which any such thing is demanded here), but, let a complaint once be made and there is no delay in bringing the offence in a distinct shape under the cognizance of the House. We do not then hear that it was done in a moment of irritation—that the offender had conceived the privileges of the press to be attacked—we do not hear it said, "we must excuse this warmth in editors or in reporters; don't examine the case, don't come to a vote, don't let us visit a mistake; if he had waited forty-eight hours, and had taken the slightest pains to inform himself on the subject, we should have escaped; he would not have made his remarks, for he would have found there was ho ground for them. This is not the defence which is set up in such cases, but it is precisely the defence set up for the noble and learned lord, and I cannot conceive that, hereafter, if this case passes unnoticed, it will be any thing less than insane to talk of vindicating, as against more humble individuals, the privileges which the chancellor is admitted to have violated; for no one, I imagine, will deny that he has most grossly violated the privileges of parliament [hear of dissent from the ministerial bench]. Then, Sir, if this be not a violation of the privileges of parliament, I should be glad to know what is conceived to be one? 589 I remember one of the late cases in which this House has vindicated its privileges by harsh measures: it sent an individual, not a high or powerful one, indeed, but an humble individual, Gale Jones, to Newgate for five or six months because he had violated our privileges. The ground of that proceeding against Gale Jones was a quibble on two lines of the Bill of Rights—that no man shall be questioned for any thing said in parliament, in any other court or place; and the act attributed to Gale Jones was, that he had placarded on the walls a question concerning the conduct of a member of the House, which was to be debated at some spouting club. No one, not merely no lawyer, but no one who can read and has common sense, can suppose that the Bill of Rights means any thing like what was attributed to it—or that the "questioning" in any other court or place, (the word place was the occasion for the quibble,) can have had in view placarding the streets or canvassing a member's conduct in a debating club; but I do think, that without quibbling, the conduct of lord Eldon approaches near to a violation of that declaration. He remarks on the conduct of a member of parliament, not in a place merely, but in a court. He does not "question," it is true castigatque auditque. He does not read other reports; he does not take his paper to any one, who could have informed him what was said by my hon. and learned friend; he does not allow the least time for inquiry, but proceeds without hearing, to pronounce his sentence, and to carry the sentence into execution [hear, hear!]. I am sure, Sir, that the language I have used is not a tittle too strong. With the noble lord's intentions I have nothing to do; it is the tendency of his acts I must look to; and I ask, with what safety can a member of the bar sit in this House, if the head of the court in which he practises, and to which he is confined—in which the means of existence, and it may be of subsistence for his family are to be found, is, on account of what he has said or done in this House, to pass on him a sentence, which goes to exclude him from practice, to destroy the well-earned rewards of a former life, and, as far as the profession is concerned, to close that life for ever [hear, hear!]? I do not say that the lord chancellor has done this; but, if his conduct be lightly passed over, this may be done with impunity; and, 590 what a state is that in which will be placed the members of that profession who have, a duty to discharge here? The only defence that has been set up for the lord chancellor is, that there was something in the proceeding on his part as hasty in itself as it was extraordinary on the part of that learned judge—that his conduct, besides being indecorous to the House, shewed rashness and impatience very unsuitable to the judgment-seat, and that therefore it is to be excused. I greatly fear that no one out of this House will see the strength of this plea, and that if we refuse to deal with this offence, and reserve our privileges to crush those humbler individuals from whose attacks we have no danger to apprehend, even for this ignoble purpose they will be found ineffectual. If persons connected with the press, or any person in inferior stations to the lord chancellor, should feel any wish to hold us up to public scorn, or to paint our proceedings in characters, however false (for it is admitted that the representation this night in question altogether false), I cannot conceive why he should allow such a wish to remain, to the uttermost degree, ungratified. But if that wish should be indulged in, it will be ridiculous, or worse than ridiculous, to arm ourselves with the terrors of privilege, to guard against ridicule or invective, while we take no means to secure ourselves against a repetition of this gross and dangerous attack on the freedom of our debates, and the independence of so many of our members.
The Solicitor-Generalsaid, he had read in a morning paper what purported to have been a report of the speech of his hon. and learned friend in that House on Tuesday last. He was convinced that no such speech fell from his hon. and learned friend, but that what he had actually said was quite different from what in that paper was reported to have been said by him. The report made his hon. and learned friend say that the noble and learned lord had evaded the fair construction of the vice-chancellor's Bill, and by doing so, had brought expense upon the parties, and disparagement on a brother judge. He would ask any hon. gentleman who heard him, if such a charge were made against him if, in whatever capacity he might stand, so serious and so shameful a breach of his duty were charged upon him—would not his feelings be irritated? If his hon. and learned friend would attend to what was stated in the 591 report in question, his hon. and learned friend would see—the House would immediately see—the gross misrepresentation of that report. The report appeared in The Morning Herald of Wednesday last. Here the hon. and learned gentleman read the following passage: "Any cause that had been before the vice-chancellor might be again, according to the present practice, brought before the chancellor—not by way of appeal, but on re-hearing by getting the parties to furnish new affidavits, setting forth new matter, although the law was, that no appeal should be brought without the signatures of two counsel. The lord chancellor permitted that practice, by which a great expense was brought on the litigating parties, and great disparagement on the learned judge who had just heard the cause. Hence arose much of the increased business of the lord chancellor's court in permitting those causes to be brought for his hearing, by that construction, or rather evasion, of the act of Parliament." The learned judge was there charged with an evasion of the act of parliament, with rehearing appeals, and that without the signature of counsel: but what this paper charged the judge with as to the breach of an act of parliament, his hon. and learned friend had told the House was not what he had stated. He (the solicitor-general) was absent from the court of Chancery on the morning of Saturday, but when on coming into court the paper was shown to him in which that report was, he read it over, and he immediately said, "I doubt whether Mr. Abercromby, my hon. and learned friend, ever said that." He was glad of that cheer for if he were asked whether this was a correct report of what his hon. and learned friend had said, he would say it was not a correct report. He had not said any thing of its being a disparagement to the vice-chancellor, in the account which he had given of it that night. His hon. and learned friend had said, that the lord-chancellor was in the habit of re-hearing causes with too great facility. Now, he (the solicitor-general) knew that the vice-chancellor, two years ago, had complained to the lord chancellor, that cases decided by him on motion were the very next day heard by way of appeal before the chancellor. He also knew, that the lord-chancellor had said in reply, that the act of parliament did not go to prevent parties from having cases on motions re-heard in his court. The vice-chancellor, on that 592 occasion, wished that all motions made before the lord chancellor, for the purpose of altering a previous decision of the vice-chancellor, should, as in cases of appeal, be signed by two counsel; but the lord chancellor had said, that that course would be impossible, because the practice on the re-hearing of motions previously made before the Master of the Rolls, was not to have the signature of two counsel. He knew, therefore, that the practice in respect to motions and appeals was not assimilated. His hon. and learned friend seemed to have appropriated to himself the expressions which it was said had fallen from the lord chancellor; but, in his apprehension, there was no personal observation intended to have been made. No one could more highly estimate the honour and integrity of his hon. and learned friend than he did. He heartily concurred in the cheers that his hon. and learned friend had received: no man was less capable of saying what was not true than his hon. and learned friend. No man was less likely to make a public subject the vehicle of private and personal attack. On the morning that the painful discussion had taken place in the court of Chancery, he declared that in his opinion, the words attributed to his hon. and learned friend were not used by him [repeated and loud cheers from the Opposition]. He trusted he had now exculpated the noble and learned lord [a laugh, and cries of no, no!]. He might not in the opinion of others have worked out what he had intended to work out. He could not help it, if other gentlemen took a different view of the question. It was said, that the observations of the lord chancellor amounted to a direct personal attack on his hon. and learned friend. He did not think so. If a judge were suffered ad libitum to make attacks in his own court, on the practitioners of that court he would feel that the profession of the law was prostrated and degraded—he would never countenance such conduct—he would never assist any chancellor, any judge, or any living man in such attacks. He went along with his right hon. friend, with him he could not believe that the noble and learned lord meant to make any personal attack. What was said by the noble, and learned lord was in answer to an attack supposed to have been made in a speech which was riot spoken; and was intended to set his lordship right with the public, on a matter of fact, which grew out of the 593 misrepresentation that had taken place. He absolved the lord chancellor from any, the slightest breach of the respect due to the bar. He acquitted the noble and learned lord of having done any act that any judge in Westminster Hall would have avoided, as oppressive towards that body. "Hanc veniam damus petimusque vicissim." This was a subject on which any man might be expected to betray some impatience. The noble and learned lord found himself held up to the public, as guilty of a perversion of justice, as the author of mischiefs in the court in which he presided. Was it to be expected, that he should hear those charges in silence, that he was to hear calumny, abuse and misrepresentation, without observation and without reply? The misrepresentation in question was one, which, though to be regretted, might happen to be made by any man not a lawyer, whose mind was not habituated to legal distinctions, and legal investigation. Personal contest surely could not have been the object of the noble and learned lord; but every candid man must allow, that the statement which had been made was calculated to excite the feelings. That passage, every word of it, turned out to be false in point of fact. The imputations which were of so serious a nature were not made by his hon. and learned friend, but were represented to have been made by him. Having said thus much, he would not further trespass on the time of the House. If he had not succeeded in bringing the gentlemen to his view of the case, he at least felt strong in his own opinions. He agreed with his right hon. friend, that he saw no reason why his hon. and learned friend should take what had fallen from the noble lord in the light of a personal attack. It was not meant as an attack on his honourable and learned friend; it was not meant as an attack on the privileges of that House it was merely an abstract vindication of the judicial conduct of the noble and learned lord, without intending to throw any personal imputation on his hon. and learned friend.
§ Mr. Scarlettsaid, that as a member of that House, whose privileges were attacked, and of that profession whose rights were assailed, he hoped he might be permitted to say a few words. He concurred in the speech of his hon. and learned friend who had just sat down—a speech which did the highest honour to his hon. and learned friend, and to every sentence 594 of which he subscribed. If his hon. and learned friend had been placed in the situation of the noble and learned lord, it was evident that he would have taken a very different course from the course taken by the noble lord. His hon. arid learned friend had said, that when he read the report, he doubted whether the expressions there attributed to the hon. and learned member had been made use of by him. Well, was his hon. and learned friend, he would be glad to know, more disposed to doubt than the lord, chancellor of England? He did not hesitate to say, that the step taken by the noble and learned lord, was most degrading to the bar of England. Why, he would ask* had not the noble and learned lord, when he saw the report in a newspaper, taken, as he might have taken, some steps to ascertain whether that report was or was not true? He might have sent for his hon. and learned friend, he might have laid the report before him, and questioned him as to its accuracy. There was another course open to the noble and learned lord, if he meant merely to reply to the statement contained in that report* why did he not mention the report—and why did he allude to his hon. and learned friend? There were various ways which an individual might take to refute charges appearing in print: he might take up the report complained of, and reply to the charges contained in it. He (Mr. Scarlett) did not intend to take up much of the time of the House on the present question; for he could state the sentiments which he entertained respecting it in a very few words. He would suppose that the chancellor, or any other judge, had, for any expressions used by a member of that House, proceeded to commit him to prison—what would the House say—what would it do in such a case? He would ask, would not the House consider such a proceeding a gross violation of their privileges? Suppose the chancellor, or the judge, had proceeded against the member by some process of the court and fined him—would not the House consider such a proceeding a gross and violent invasion of its privileges? He asked the House* then, were they prepared to say, that they would preserve the persons and property of its members from the attacks of the chancellor, but that they were ready to surrender their characters to be disposed of at his pleasure? For himself, if he were to act according to his own feel- 595 ings, he would much rather that the chancellor should send him to prison—he would much rather that he should strip him of his fortune and of his gown—than to call him a liar [cheers]—than to call him a liar from the seat of justice; He would suppose that that daring and most degrading epithet had been bestowed on him, not by a lord chancellor—not from the bench of justice—but from his equal in private life—what would that House think of one of their members, who would tamely put up with so grievous an insult, without having the courage to resent it? If that House, then, were jealous of its privileges, when those privileges were attacked by an individual of little note, or little power, how much more were they called upon, to vindicate those privileges, when they were attacked by so powerful and so high a personage as the lord chancellor of England, from the very seat of justice? It had been said, that the bar of England was in a degraded state. It would ill become him, as an humble individual belonging to that profession, to enter, in that place, into the truth or falsehood of that assertion; but this he would say, that if it were intended to degrade the bar of England—to sink it lower in public opinion—no more effectual way could be taken to accomplish that object, than that which the lord chancellor had taken [hear, hear!]. If the head of a court conceived that a member of that House had injured his reputation, or had hurt his feelings, by making use of certain language in his place in parliament—and that judge having all the power in his own hands—speaking from a place where no answer could be made to him, should attack the member—should charge him with falsehood—should express his astonishment, that language such as his could come from a man who wore a gown on his back—in such a case, where were the boasted privileges of that House—where was the independence of the bar? He could not hope that the House would deeply sympathise with him when speaking of the integrity of his own profession; but, when they looked on the question as a question deeply affecting the privileges of that House, he asked them, were they inclined to defend those privileges? Was it only inferiors that were to feel the effects of their power? Were they only to defend their privileges against those who could not injure them, whilst the great and the powerful might trample upon 596 them with impunity? The House, he hoped, would recollect, that those privileges were not given to oppress the weak, but were intended as a shield of protection against the powerful. He owned he thought that the argument gained strength in proportion to the power and authority of the offending individual. He said it with great sincerity, that the noble and learned lord was a person of high reputation, of great power, dignity, and honour; but, when he thought fit to attack an humble member of that House—humble in comparison with the noble and learned lord—and, to pour forth the vial of his mighty wrath upon him, that House was bound in support of its rights, its dignity, and its character, to vindicate its assailed privileges. Suppose his hon. and learned friend, instead of having been attacked by a person of great power and influence, had been attacked by any of the judges of the common-law courts, would not that House have indulged in one universal feeling of indignation? Why were they to feel less because a chancellor attacked one of their members? Was it interest, or was it fear, that prevented them. It was either one or the other? If they allowed themselves to be influenced by either, they would surrender their privileges, and would endanger that character in public opinion, upon which those privileges in no small degree rested. What was the defence which had been set up for the lord chancellor? It was said, that he had thought that his hon. and learned friend had said something respecting him that was an utter falsehood. Suppose he had said so, that would not alter the question of privilege. The attack on his hon. and learned friend, was an attack on their privileges. It was not denied, that the individual alluded to by the lord chancellor, was his hon. and learned friend. It was admitted, that his speech was misrepresented in the identical paper which the chancellor had the misfortune to read. Was it to be endured, that the lord chancellor should degrade and vilify a member of that House, because he thought fit, without inquiry or examination of any sort, to take up as true that which was false—and which, whether false or true, could not justify the noble lord in making an outrageous attack on the privileges of the Commons of England? It was with reluctance he had entered into the discussion. For the lord chancellor personally he felt no- 597 thing but respect. Whenever he had, in the course of his professional avocations, been before that noble and learned judge, he had experienced from him great civility; but it was from a strong sense of duty, although with much reluctance, that he felt compelled to express the opinion which he entertained of his conduct in the present instance. In no instance, as far as he could learn, from the history of the country, as well as from his own experience in that House, had the parliament of England been more vehemently called upon to vindicate its privileges and its dignity.
The Attorney Generalrose to offer a few observations to the House on the present occasion. The impression on his mind, with respect to the attack which the noble and learned lord was accused of making, was, that the noble and learned lord had no intention of making any such attack, but was desirous merely of defending himself from an attack which had been made against himself. He begged the House to consider the situation in which the lord chancellor, or any other individual, was placed, who might be made the object of certain charges which should be circulated throughout the country without contradiction. The debate, in the course of which the speech of his hon. and learned friend had been made, took place on Tuesday; the newspaper in which a report of it was inserted was published on Wednesday. In that report—which he admitted was an incorrect one—the lord chancellor was charged with very extensive malversation in his office, with having perverted the practice of the court of Chancery; and with having evaded the law itself for a most degrading purpose—namely, that of elevating himself, at the expense of another judge who was sitting in the same court. Could any thing, he asked, be more galling to the mind of the noble individual against whom it was made than such a charge? That charge, thus supposed to have been made within the walls of parliament, had been circulated throughout the kingdom for several days, when the expressions of the lord chancellor, now alluded to, had been used. But, would it not be fair to inquire whether his hon. and learned friend had in the interval, taken any steps to correct this mis-statement? Did he come down to the House and call for its censure upon the individual who had circulated a libel, as untrue and as unfair as it regarded him- 598 self, as it was calumniatory of the lord chancellor? Was the noble and learned lord, therefore, to be supposed to have felt nothing, when he saw this charge made universally public, and remaining uncontradicted? Could no excuse be found for the noble and learned lord when he made use of the expressions which had been alluded to? Was he stating too much, when he said, that the lord chancellor did not attack his hon. and learned friend, but had only defended himself from the aspersions which had been so unjustly cast upon him? He was ready to say, that his hon. and learned friend had not given any ground for the statement which he was represented to have made. He had followed his hon. and learned friend throughout the distinctions which he had taken respecting the several modes of practice in the court of chancery and of which he complained. The technical knowledge which he possessed of the subject made those distinctions perfectly clear to him; but he was quite aware, that to any but a lawyer's mind they might not appear so clear, and that persons unacquainted with the practice of the court mighteasily have misapprehended them. To this want of knowledge and not to any desire of misrepresenting what had passed, he attributed the error which had appeared in the newspaper. The noble and learned lord, he admitted, had expressed himself unguardedly, and with considerable warmth and indignation: but it must be remembered, that at the time he did so, he held in his hand the paper containing the statement, and that his animadversions were directed, not against his hon. and learned friend, but against that statement which had for several days remained uncontradicted. When the irritating and degrading nature of the conduct which was imputed to him was recollected, would it be too much to expect that the House should make some allowance for the warmth of the terms in which the noble and learned lord's feelings had been expressed? This was the fair and candid statement of the case; and it did not appear to him, that when the privileges of the House were talked of, reference should not be made to what had taken place fifty or a hundred years ago, when the publication of the debates was not permitted. If the House permitted the publication of its proceedings, if it allowed misrepresentations of what was stated by members to go forth, it was a little too much to be so 599 strict in this instance, in enforcing privilege for intemperate expressions used in the heat of the moment, and which would not have been employed had time for reflection been allowed. As to the present condition of the English Bar, to which his hon. and learned friend who spoke last had referred, when he said that its state was most humble and degraded, he must say, that he differed completely from any man who entertained such an opinion. From his own experience he might say, that at no period was its independence more distinguished—that never had there existed greater freedom of discussion, not only in investigating the merits of cases, but in deciding upon the conduct of judges. Feeling thus, he should have been sorry to have permitted such a remark to pass, without asserting that, as far as his experience went, it was destitute of foundation. The way he submitted the question before the House was shortly and simply this:—A false representation had been made of what fell from the hon. and learned gentleman; that false representation laid a charge of a most serious description against the lord chancellor; that charge was presented to the mind of the lord chancellor on a sudden, who expressed himself warmly and intemperately. If the noble, lord's expressions had been, as he thought they were, too warm, still he thought, under the circumstances, that they were not such as should induce the House to support the motion of his hon. and learned friend.
§ Mr. Scarlettbegged to explain. He had not said that, it was his opinion that the bar was degraded; he did not think so; but this he would assert, since he had been publicly called upon, that the honour, the independence, and the enlightened state of the bar was attributable to the bar itself, and to the vindication of its own character.
§ Mr. Tierneysaid:—I had originally no intention of obtruding myself upon the House, but after what has passed, the question seems to me of such immense importance to our most vital rights and privileges, that I should think I disgraced myself if I gave a silent vote, and if I did not state why I think the mode recommended by my hon. and learned friend ought to be supported by every man who hears me. Let us look a little at the real condition of the question. My hon. and learned friend comes down to the House, and makes a complaint 600 against no less a person than the lord chancellor of England: the ground work of that complaint is, that the lord chancellor of England, from the judgment-seat has been pleased to denounce my hon. and learned friend not only in unmeasured, but in gross and calumnious terms. Every member who has spoken is satisfied of the correctness of the statement of my hon. and learned friend, and it is admitted on all hands, that the charge made by the lord chancellor was not supported by the speech really delivered in this House. Nothing can be more agreeable, as far as individual feelings are concerned, than such a vindication, and especially after what has escaped from the lips of the lord chancellor. It is impossible that any man can stand higher than my hon. and learned friend in public estimation. Personally, therefore, he has not the slightest interest in this question. Whatever regard I may feel for him, however warm my friendship—I am persuaded that he can want no more than he has obtained from the general acknowledgment of the House. But, what is to become of the calumniator? What is to be done with the man who so asperses a member of parliament? That is indeed a very material question. The defence set up is of a most extraordinary nature; but, first of all, I may be permitted to remark, that no hon. gentleman, or right hon. gentleman, has said, that he has authority from the lord chancellor to vary a syllable of what he is accused of having uttered. No man has come forward with any apology; and if the lord chancellor were disposed to humble himself before the House and to acknowledge his error, I should think the right hon. secretary for Foreign Affairs would be the last mouthpiece he would select to express his humiliation. For after what has passed, it would indeed be curious to find that he has arrested that right hon. gentleman from his foreign travels, in order to have the benefit of his defence at home. I cannot find that the learned gentlemen who have spoken on the other side, have conferred any weighty obligation upon his lordship. They say that the lord chancellor read a report in a newspaper, which was not founded in fact. This may be true; but it is somewhat extraordinary that this should be, perhaps, the only paper which the lord chancellor, since he has been upon the Bench, did not take home to consider; that this should be the 601 only case in which he has been able to come to an instant decision, and that the suddenness of his determination should be the only point relied upon for his defence. On one night I am called upon in mercy to recollect the past services of the lord chancellor, to make allowances for his amiable hesitating nature, and on another I am told, that I must acquit him of a charge of this serious kind, not because he is a doubting man, but because he is a rash one. This sort of reasoning I cannot understand, but, on such reasoning, rests the only excuse that the noble and learned lord's friends have been able to furnish. Let us look a little to the forms of the House, and see how such matters have been treated on other occasions. I defy any hon. gentleman most acquainted with precedents—I defy even the right hon. President of the Board of Control, patient as he is in his parliamentary researches on points of privilege—to point out any instance when a motion of this sort has been made, where the fact of certain expressions having been used out of doors, with reference to what has passed here, has not been established, before the offending individual has been required to make his excuse. What is proposed by my hon. and learned friend is only first to put us in possession of the facts. Suppose Mr. Farquharson be called to the bar: he is a short-hand writer, whose name I have frequently beard, and I have no doubt that he accurately took down what was said by the lord chancellor. When that is proved, then comes the time for the House to consider whether it will visit, this offence on his lordship. The uniform practice has been, that the party complained against shall be heard at the bar, before the House considers at all the matters of mitigation. Can you hear the lord chancellor at the bar? No. Do you mean, then, that you will abstain from vindicating your rights and privileges because the injury comes from so high a quarter that you cannot bring the individual to your bar? If so, it is very clear that your privileges are worse than good for nothing, for you are afraid of asserting them against men in power. I will put the case of any inferior offender—of Mr. Hope, for instance. He was put to the inconvenience of coming up all the way from Edinburgh, and irritation was part of his defence. The House was satisfied by him, at the bar, that he had not acted from any improper motive; that he had not 602 wished to infringe its privileges; and accordingly it let him off, as I think, very easily. Here, however, we are dealing with the lord chancellor of England, and that is to make all the difference—to him this House is to submit as his inferior; and because he is a minister and chancellor, and because the attorney and solicitor-general (who by the way are very apt to have kindly and compassionate feelings towards a lord chancellor) inform us, that the noble and learned lord read the paper hastily, and pronounced upon it rashly, this House is to say nothing about it, and to put up with the affront. I certainly make very great allowances for the state of mind of the noble and learned lord after what has been going on in this House for the last four or five years, even his cool and amiable temper may reasonably have been ruffled by repeated motions, against which I never yet heard any sound argument. Above all, he may have been irritated by the result of the last debate upon his conduct, when his friends found themselves obliged to offer him nap as a victim; when they could defend him no longer; and when he was compelled, how reluctantly I need not say, to consent to a commission. It may be well conceived, that this compulsory course produced an irritable state of mind; but that can form no justification. "What would you have him do? he was defending himself, not attacking the hon. member for Calne," says the learned attorney-general. The offence to the House was only incidental, it seems, to his defence of himself; and the noble lord meant only to attack the paper, and not the man whose speech it reported. It seems, too, that the lord chancellor only saw the newspaper for the first time, on the morning when he used this expression. It is quite clear that he does not incur the heavy expense of taking in a newspaper, or he could not have missed reading the speech of my hon. and learned friend on Wednesday, Thursday, or Friday, for the debate on the delays in chancery took place on Tuesday, and the breach of privilege was not committed until the Saturday following. Without saying any thing unkind or disrespectful of the newspaper in question, which generally, I believe, reports faithfully, it will be sufficient for my purpose to say, that the moment the lord chancellor got hold of it, he exclaimed, "This will do; I want no more; I will now go down to my court, and from the bench I will make this attack upon a 603 member of the House of Commons." "Oh," replies the attorney-general, "his lordship meant to attack the newspaper, and not the barrister." What! has a newspaper "a gown upon its back?" When it has, the answer may be a good one; but not till then. I have too high a respect for the learned attorney-general to suppose that he would enter into any thing like so cavilling a defence as to say, that the lord chancellor did not mean to refer to a debate in the House of Commons, or that when he mentioned men "with gowns on their backs," he did not allude to my three hon. and learned friends who took part in the debate of Tuesday night: against them only could the attack be levelled. They are members of this assembly, and it is our duty to protect them against calumny. If the House submits tamely to this insult, never again let us hear a word about privileges. I know it is a difficult matter to decide how we are to hear the lord chancellor in mitigation; but, in some way or other, that must be got over. First of all, this motion must be carried; and on this point I differ from my hon. friends, who think it will be rejected. I am quite sure it must be carried, unless we are to abandon our privileges for ever. When once we have got at the fact, we may pause before we enter into the difficulties of the case. What then is to be done? Can the lord chancellor make an apology on the bench? In many instances we know that where the apology has been as public as the insult, it has been deemed a sufficient satisfaction; but the lord chancellor, consistently with the station he holds, cannot retract: his character in the profession, and in the country, would be ruined for ever if he were compelled to say, "I grossly abused the hon. and learned member for Calne on insufficient grounds; I am sorry for what I have done, and I beg his pardon." This is not to be expected; but something must be done—some excuse must be made, or the House has no plea for not proceeding further. I am sure I mean to treat the lord chancellor with all possible respect; no man admires more than I do the profound research of his mind: I believe him to be a man of unimpeachable integrity; but I do not take him to be a judge who has conferred such endless blessings upon the country, that the privileges of the House are to be thrust aside to make way for his escape. I am willing to pay my tribute to the noble lord's learning and cha- 604 racter, but I will take leave to say that his jurisdiction has been so administered for two-and-twenty years, that in common parlance, his court has become a national grievance. I do not impute any bad motives to the lord chancellor, but I state the effect practically: he is now indeed near the end of his career; I mean merely from his advanced age; for otherwise it is impossible to say when his career might end. But, granting him all the good qualities his friends (if indeed they may be called his friends who have spoken in his behalf to-night) ascribe to him, is he to tell this House, "I have read something in a newspaper, I do not know whether it be right or wrong; but without considering what pain I may inflict, whose character or fortune I may ruin, I will say what I think proper, I will use what terms I please with impunity, for I am a lord chancellor of twenty-two years standing?" I might safely appeal to the whole bar, to all the solicitors practising in the court of chancery—whether the greatest possible inconvenience does not result from the dilatory habits of this lord chancellor, who being of twenty-two years standing, has rendered the grievance complained of as old as his own elevation. It is to this that my hon. and learned friend objects, he wishes to remedy the evil: because he wishes to remedy it the lord chancellor abuses him; and because he abuses him, as is said, in a moment of unguarded irritation and rashness, this House is to do nothing for the maintenance of its privileges! My opinion is directly the contrary; and I state it, because I do in my conscience believe, that if this unhappy precedent be established, it will prevent the possibility of our ever exercising our privileges again. Men out of doors will not draw the refined distinctions we are pleased to take here: they will say that we do not mete an equal measure of justice to the great and to the little; that we crouch before the high, and trample upon the low; and that against the lord chancellor of England we dare not assert those rights which we rigidly enforce against a humbler subject of the realm. What course it may be fit to pursue after the first motion has been carried I am not prepared to say; but I implore the House to consider with what face it can make its defence to any man who shall ask out of doors, "why did you, on a complaint, admitted to be well-founded, refuse to go into facts, which would have 605 given you an opportunity of expressing your sense of what is due, not only to the lord chancellor, who has been thus guilty, but to your own privileges and your own independence?" [Cheers.]
Mr. Secretary Peelobserved, that he was by no means inclined to pursue the course just recommended, namely, for the House to take the first step, and then to meet the difficulties that must inevitably present themselves. It was his opinion, that it would be infinitely better calmly to weigh those difficulties before the House was involved in them. There were here two questions that seemed to have been confounded; first, had there been any breach of the privileges of the House, or such a breach as it was expedient to notice? secondly, had there been any attempt to threaten any member of the learned profession, in order to deter him from the discharge of his duty? The latter appeared to him infinitely the more important; for a breach of privilege was of far less consequence than it would be to consider whether there had been an attack upon the independence of a member of parliament. As to the first question, it was certainly very difficult for any individual to say in how many instances in the day the privileges of the House were infringed. Members themselves were guilty of constant breaches; and within the last two years constant and irregular references had been made to the proceedings in the House of Lords. The grosser offence was avoided by talking of "another place," and of speeches delivered there; but this was a mere evasion; and perhaps it would be much better to make direct allusions, and at once to answer remarks made by the peers, than to resort to this apparently unworthy expedient. It was most material to this discussion, to remember, that the origin of it was a direct breach of privilege, at which the House connived—namely, the publication of its proceedings. It had the power to enforce its orders; but he admitted that it was much wiser to continue the permission, than to put a stop to the practice. There was a balance of evils; but the advantage predominated in favour of the publication of debates. Yet great inconveniences sometimes arose, and the present was a striking and pregnant proof of the mischief. The hon. and learned member had made a speech reflecting on an individual—it was printed next morning, and it was wafted, 606 not only to every district of this kingdom, but to all parts of the world where the English language was understood. The speech contained a charge against the first judge of the land, that he had evaded an act of parliament, in order to disparage another judge, his coadjutor; and a regard to common justice, independent of feelings of wounded honour, induced the lord chancellor to come forward and deny the accusation. On what ground did the House permit the publication of its debates? Because it felt sensible of the immense advantages of free and unrestricted discussion; but, if the publication carried falsehood on the face of it, an opportunity ought surely to be afforded for asserting the truth. If the House enabled false charges to be made—if it promoted their circulation—it never could reconcile with its sense of justice, a refusal to allow the party calumniated an opportunity for vindication. If, with the warm feelings of an Englishman, the party had made use of intemperate language, he (Mr. P.) maintained that the distinction was just, that the lord chancellor had not been guilty of the first attack. Being himself accused, he claimed the ordinary right of being heard in his own defence, and he had declared, "I am not guilty," or, in other words, "It is an utter falsehood." It would be, indeed, the establishment of the grossest tyranny, if calumnious debates were to be published, and no means of refutation were afforded to the party attacked. An hon. and learned gentleman had said, that on his person or his property he might endure an attack, but that his character must be preserved inviolate. The lord chancellor said the same. If his character were assailed, and he had no opportunity of defending himself in the place where it was attacked, he was driven to the press, through the medium of which he was injured, to repel the imputation. The whole question was altered by the connivance at publication; but, when an hon. member printed his own speech, a court of justice drew the distinction: he made himself personally responsible, and must answer for it in damages [hear! from sir F. Burdett]. The hon. baronet might intimate his dissent; but there was a clear distinction between the publication in a newspaper, and the authorised publication by a member. The case of Mr. Hope had been mentioned. Conceiving that his character was attacked, 607 what did he do? He applied to the member whose speech was reported: and that hon. and learned gentleman might very reasonably reply, that he did not feel himself responsible for what appeared in a newspaper. He (Mr. P.) did not wish to dwell upon a topic which must be mingled with painful feelings in the mind of the hon. member; he would therefore only say, that the House had very fitly voted Mr. Hope guilty of a breach of privilege. But what course was pursued with regard to Mr. Menzies? He had not appealed to the hon. and learned member regarding his speech; he found something printed in a newspaper, and, as it was false, he gave it a contradiction through the same channel: the resolution, therefore, was merely, "that Mr. Menzies, having explained his conduct to the satisfaction of the House, he is relieved from further attendance." He would concede that the hon. and learned member for Calne was able, in this case, to prove all he had stated; but the lord chancellor could not be brought to the bar for a breach of privilege, because he had taken upon himself to contradict only what he found reported in a newspaper. The subject was complicated to all but professional men; but it appeared that motions made before the vice-chancellor might be repeated before the lord chancellor, without the signature of counsel; but appeals after decree could not be heard, without that sanction and security. It was easy for a newspaper to make the mistake; one individual, or several, might fall into error in making the report. Newspapers, however, were generally considered the best testimony; and if the point were examined, it would be found, that the speech of the hon. and learned gentleman on Tuesday last, was not correctly given in any of the ordinary vehicles of such intelligence. He implored the House to compare the accusation with the defence. The charge, as it appeared in the newspaper, was, that the lord chancellor, departing from the practice of his court, had violated an act of parliament passed in 1813; when the fact was, that in that act there was not a syllable regarding the signature of counsel to appeals. Confirmed, however, as this statement was by other newspapers, was it not natural for the lord chancellor to take an opportunity of setting himself right? Was it not under such circumstances, he would not say necessary, but natural, for the lord 608 chancellor to refute such an imputation? And in what way had he done it? These were his words—"That as it had been represented, that the person who sat here did mischief, by hearing certain motions without the signature of counsel,—that was to say, when motions had been made to discharge an order of the vice-chancellor, or the Master of the Rolls, that such motions had been brought on without the signature of counsel,—he had only to state, that having been in this court since 1778, whenever a motion had been made before the Master of the Rolls, which he had refused to allow, or which he did allow, and upon an application to the chancellor to vary what the Master of the Rolls had done, or to destroy it altogether; and so again, whenever a motion had been made before the vice-chancellor, and counsel had been of opinion that the motion had been improperly granted or discharged, the party had always, in all those cases, been at liberty to move again, with a view to set the matter right; and if the signature of counsel were necessary to alter the practice of the court as it had obtained since the period he had mentioned, all he could say was, that he had not a right to tax the king's subjects in that way." Could any thing be more moderate than the concluding remark of the sentence which he had just read? So far, there could be nothing more temperate. Could common flesh and blood bear an imputation of the nature alluded to, without resistance? The publication of any speech delivered in that House was technically a breach of privilege; but the practice, however informal, prevailed; and often became the subject of reference. Was it not the practice of judges to protect from misrepresentation the proceedings of their courts? He knew that lord Hardwicke, upon pronouncing a particular decision, had unequivocally declared, that it was one of the chief duties of a judge not to allow his judicial proceedings to be misconstrued. He had said that there was no one duty more important in a court of justice, than to have its proceedings set right with the world. The next sentence in the speech of the lord chancellor to set himself right, was that of which the hon. and learned gentleman principally complained: it was this—"with respect to appeals and re-hearings, it was supposed that he had heard them on new evidence, and thereby brought discredit on some part of the court. It was an utter falsehood." Now, 609 with reference to that sentence, he entered, entirely into the feelings of the hon. and learned gentleman, and agreed that the reflection could not possibly attach to him; but the question he would ask, was, did any of these terms constitute in themselves a breach of privilege? He was not prepared to say, that the terms used were fit and temperate; but he contended, that this strong and vehement denial of a charge did not constitute a breach of privilege. He knew that technically any allusion to speeches, delivered within the walls of parliament was a breach of privilege; but he again insisted, that strong terms of denial, under whatever excitement, did not on that account constitute a parliamentary offence. Suppose the noble and learned lord, instead of using the phrase "utter falsehood," had said "extremely erroneous;" in that case, he was quite sure they would never have heard of the present motion. No doubt the expression was entirely misapplied when it was pointed at the hon. and learned gentleman, and could only have been intended against the newspaper report of his speech. Nothing could be more moderate or temperate than the words which followed from the lord chancellor, who said, that in "rehearings, it was always competent to read the evidence given in the cause, though it was not read in the court below, either by the counsel or the judge: further than that, the court did not go. On appeals, it only read what had been read in the court below, and that practice he had never departed from in any one instance." But then came the following two or three lines which were objected to—"therefore, really before things were so represented, particularly by gentlemen with gowns on their backs, they should at least take care to be accurate, for it was their business Jo be so." He (Mr. P.) fully admitted, that that was not the way to allude to gentlemen of pre-eminence in their profession, and he was quite persuaded, that his noble and learned friend would not have used the objectionable words, had not he been at the instant under great irritation from the imputation which he supposed had been levelled at him. The terms "with gowns on their backs," were not meant to convey any personal reflection—they amounted merely to a professional designation of the togati, which was the costume of the courts. He was sure, then, that there was nothing in the particular expressions, which clearly 610 were the emanation from excited and irritated feelings, that called for the interposition of the arm of parliament upon a question of privilege.—As to the supposition, that the lord chancellor could have had any deliberate intention of intimidating a member of that House from the discharge of his duty, this would undoubtedly be an offence of ten-fold greater magnitude; but he was sure the House would be perfectly satisfied that no such intention existed. Indeed, the hon. and learned member for Peterborough (Mr. Scarlett), who was so distinguished an ornament of the court of King's-bench, though he had taken a decided part in that House in questions affecting the court of Chancery, had still declared, that he had been uniformly treated by the chancellor with the greatest justice, impartiality, and even personal courtesy. If the chancellor had intended to select a particular part of the discussion which had taken place on Tuesday, as the subject of animadversion, he would put it to the House whether it was probable that he would have selected the speech of the hon. and learned member for Calne? He was quite satisfied that there existed no intention of throwing any imputation on that hon. and learned member, and though undoubtedly some strong expressions fell from the chancellor in a moment of irritated feeling, he felt the strongest conviction, that there existed no deliberate intention of invading the privileges of that House, and still less of holding out a threat against any member, with a view of intimidating him in the discharge of his parliamentary duties. If the House considered that he had succeeded in establishing these two propositions; first, that the terms used by the chancellor did not of themselves constitute a breach of privilege; and secondly, that he had no deliberate intention of intimidating a member of that House from the discharge of his duly, he trusted that these considerations would prevent them from adopting the course recommended by the right hon. gentleman opposite (Mr. Tierney), a course which he himself admitted abounded with difficulties, not one of which he had attempted to solve.
§ Mr. Tierneyobserved, in explanation, that he had not stated that there was any difficulty as to the course which the House ought now to pursue. On the contrary, there could be no doubt of the propriety of acceding to the present mo- 611 tion; leaving for future consideration what course the House should afterwards take; which would be contingent on the nature of the apology made by the chancellor.
§ Sir James Mackintoshsaid:—I can assure the House, that I shall, for my own sake, trespass for as short a time as possible upon their attention, for I rise at no small personal inconvenience; but I cannot refrain from making a few observations on a question, which is undoubtedly one of vital importance, convinced as I feel that the rejection of the present motion would be one of the most fatal blows that was ever struck at the privileges of the House of Commons, and through them, at the constitution of parliament. The right hon. Secretary, after the manner of a practised logician has raised inferences from the motion which it by no means warrants, when fairly and rationally considered. The motion now under Consideration is, in plain terms, whether we shall receive the accessary evidence to establish the alleged fact of a breach of the privileges of this House, aggravated by a false charge against one of its members. I do not charge the chancellor with any intention of intimidating the gentlemen of the bar, or of deterring any individual member of the profession from the performance of his duty, by holding out threats delivered from the judgment-seat, which may have a tendency to influence the conduct of such members of the profession as have likewise seats in this House. Undoubtedly, such an intention would be a great aggravation of the breach of the privileges of this House; and I agree with my hon. and learned friend in thinking, that the House is bound to inquire, in justice to the character of that profession, which would be tarnished and degraded by the rejection of this motion, f the Ho use refuse to inquire into the charge now made against the Lord Chancellor of England, they will cast a stigma upon that profession of which I had once the honour to be an humble member, and the members of which ought for ever to be excluded from this House, if they are to be placed in a state of miserable and precarious dependence on the judges of the courts. There is a charge of further aggravation of the breach of the privileges of this House, which is one of the greatest magnitude. What was the nature of the debate which gave rise to the present discussion? An inquiry into the 612 constitution and administration of the court of Chancery, and the functions of the judge who presides over it. This House, in the exercise of one of its highest and most important duties, was engaged in the inquiry, whether justice was duly administered in one of the greatest courts in the kingdom, and the judge of that very court which was the subject of inquiry, takes an opportunity of arraigning, on the judgment seat, in precipitate, violent, and coarse, language, the conduct of a member of parliament, who, in the discharge of his public duties, participated in that debate. If this is to be endured, the standing orders of the grand committee of Justice, which for centuries have formed a part of the functions and privileges of this House, ought to be erased from our Journals. They will be a satire on our proceedings; they will remain only as land-marks to shew how we have degenerated from our forefathers, who regarded them as an essential part of the constitution, and who considered their maintenance a fundamental part of their duty. The right hon. gentleman who spoke last has carried one argument to a most extraordinary length. It was wisely declared, that that permanent breach of our privileges which is committed by the publication of our debates, is one which ought to be connived at. In that opinion I freely concur, and I agree, that there should be modifications of our treatment of breaches of privilege arising out of this tolerated breach of privilege. I cannot, however, admit the inference which the right hon. gentleman, with all the dexterity of a practised logician, drew from this argument; namely, that because we tolerate the publication of our debates, we must, therefore tolerate every kind of attack on a member of this House, however false and calumnious, which may be made in consequence of the statements in some publication of our debates, especially that most dangerous of all attacks, an attack made by a Judge sitting in his own court of justice, on a member of this House; an attack made by one of the king's ministers on a member of this House for exercising a constitutional jealousy as to his conduct. It has been said, that Mr. Menzies very properly distinguished between what was said by a member of this House, and what he was stated to have said in the newspapers; but this is a distinction to which the chancellor of England has paid no attention. 613 The chancellor of England does not pay the House the slender compliment of making this distinction; but he proceeds at once to attack a member of this House, for what he is reported to have said in a single newspaper. It is in vain to argue, that the offensive language was exclusively intended to reflect upon the newspaper. The newspaper wore no gown upon its back, the newspaper did not practise in the court, and was no minister of the law; but the individual member did wear a gown, did so practise, and was therefore the person against whom the attack was manifestly directed. But, said the right hon. gentleman, "Would you be so cruel as to deny to a public functionary who is misrepresented the right of self-vindication?" God forbid I should deny any man that inherent right, I would allow such a man every means of vindication; but, is it too much to require of him first to ascertain from the party who could best give him the information, what was the real charge of which he thought he had been made the object, before he took all he had read for granted, and imputed falsehood, and wilful falsehood, to a man of honour, of principle, and of character? Suppose in private life, that such an occurrence had taken place—would it not be thought unfair, and imprudent, for a gentleman at once, upon a mere unauthorized statement, to assume the whole to be a fact, and to proceed to the last extremity (for what else is the imputation of utter falsehood?) without ascertaining from the party what foundation there was for the charge, through the medium of some common friend, or through any other channel of communication or intercourse in the routine of society? by this mode of precipitating offence, there was no opportunity afforded to a party of justifying his character, or explaining his conduct. The right hon. gentleman has spent six years in a country allowed to be remarkably sensitive upon points of honour, and forward in resenting insult; and is he prepared to say, that he would justify in a raw boy, who had just been emancipated from the discipline of his college, the same violence and precipitancy which he now justified in the lord chancellor? The right hon. gentleman opposite had asked, where could the lord chancellor vindicate himself? I answer any where but on the judgment seat—any where but in a place where all equality is removed, where not only the party ac- 614 cused is absent, but where none who are present can venture to dispute or discuss the allegations of the accuser. Where could he vindicate himself? Why, in his place in another house of parliament, or through his friends in this. Is the lord chancellor of England so feeble, so defenceless, so helpless, that he has no voice to raise in his defence? He has a powerful and an eloquent voice. Has the lord chancellor of England no friends in this House? He has many who are attached to him by the ties of gratitude, and who are ready to defend him against any charges which may be made against him. The hon. and learned gentleman, the solicitor-general, has introduced a very ingenious argument in extenuation of the conduct of the chancellor. In fact, all that has been stated in his favour amounts to nothing more than extenuation. Now, I must say that topics of extenuation are introduced at a most unseasonable stage of this proceeding. Extenuation affords no argument against inquiry; extenuation may be a reason against severity of judgment, it may be a reason against any judgment at all, the merits of the individual may be taken into consideration, and prevent us from passing any judgment. Whether the merits of lord Eldon are of this description I do not now inquire; but I do say, that the pleas of mitigation that have been alleged on the other side of the House are introduced most unseasonably, as bars to inquiry. The right hon. and learned gentleman seemed to think, that the lord chancellor was justified in the course which he had pursued, because his hon. and learned friend did not, on the morning after a late debate, and while he was probably absorbed in his professional occupations, collect, collate, and compare, with critical accuracy, the reports published in all the morning papers of his speech on the previous night in the House of Commons, and at the moment point out which part was right and which was wrong. This is a most extraordinary requisition for one member of parliament to make of another, and certainly is not the way in which such a case as this ought to be met within the walls of the House of Commons. But, if there be any weight in this argument, how cruel a condemnation does it involve of the conduct of the lord chancellor! If my hon. and learned friend was bound to read all the newspapers to ascertain the accuracy of 615 their reports, how much more imperative upon the lord chancellor was it, to read them, in order to see whether he might not have been misled by the inaccuracy of one of them, before he proceeded to pronounce sentence on my hon. and learned friend! The true question in this case is this: Is there any member of this House who can deny that a breach of our privileges has been committed? None. Is there any member of this House who can deny that a false charge has been made against my hon. and learned friend? None. Is there any member of this House who can deny that such a charge, pronounced by the highest judge in this country, from the judgment-seat of his own court, is an attack on the independence of the bar, tending to influence the honest exertions of such members of the profession as may have seats in this House? None. I will venture to say, that no member of this House will deny any one of these three propositions; and I ask, therefore, with what propriety or consistency can this House declare, that we ought not to inquire into the circumstances of this aggravated breach of our privileges? The offence is admitted, but the right hon. gentleman opposite says we ought not to inquire. And why? Because the person charged is the lord high chancellor of England, though the language he used referred to an inquiry carried on in this House into the constitution and administration of the court over which he presided; and though that language was calculated to deter the only persons possessed of competent information, as to the constitution of the court of Chancery, from communicating that information to the House. The conduct of the lord chancellor on this occasion had a direct tendency to render it impossible for this House to discharge some of its highest and most important constitutional functions. The House of Commons has been engaged in struggles of various kinds, for many hundred years; it has been engaged in struggles with the Crown, which have sometimes been carried beyond due bounds, but which upon the whole, have been conducted with a spirit and an energy which have succeeded in securing to us the blessings of a free constitution—which have ended in the security and ultimate happiness of the people. But, in the whole course of these struggles, never yet has there been an instance of any magistrate, in any 616 court of justice, so presumptuous and daring, as to arraign a member of the House of Commons for a speech delivered in the course of a parliamentary inquiry into the conduct of that magistrate [Hear, hear!]. If the House be ready to abdicate its functions altogether—if it be prepared to abandon all inquiry into the abuses of courts of justice, then, indeed, ought this motion to be rejected. It has been said, and said most truly, that my hon. and learned friend will continue to discharge his duty fearlessly and independently, both in this House and in the courts of justice, regarding but little the approbation or disapprobation of the lord chancellor. But it cannot be hence inferred that the conduct of the lord chancellor will have no effect on the independence of the bar. When we consider the multitude of young men of talents rising at the bar, who are still in a state of obscurity, struggling perhaps with adversity, and depressed by poverty, it cannot be denied that the conduct of the lord chancellor is calculated to have a lamentable effect on their integrity and independence. Instead of being the intrepid champions and zealous preservers of the liberties of their country—the proudest distinction to which a lawyer can aspire—the conduct of the chancellor is calculated to check their rising energies—to repress all generous exertion—to produce a servile, obsequious bar, of which the members most distinguished for their baseness may in time degrade the bench by becoming fit instruments in the hands of power to oppress their countrymen, and destroy the free constitution of England [hear, hear!].
Mr. Wynnsaid, that whatever difference of opinion might prevail in their view of the result of this motion, there was one point upon which they were all agreed; namely, that nothing had been said by the hon. and learned gentleman to justify the comments which had been made on his speech; but he nevertheless felt that if what was said did not justify the language which it had afterwards called forth, the misrepresentation of it certainly went some way in excusing those comments. He had long attended to questions of breach of privilege in that House, and he could not class the present case among that number. He was aware that he should be exposed to the imputation of having diminished his zeal for the maintenance of their rights and privileges; 617 but he reminded the House of his uniform and expressed anxiety to secure the permanent enjoyment of those rights and privileges, by setting due bounds to their exercise, and taking care not to extend them to cases which were never intended for their application. That they were bound to maintain the fullest freedom of debate in the House of Commons, was a position which could not be called in question; but he could not hold, that the same principle of indemnity was to be extended to every representation of what was said to have fallen from them which persons out of doors should publish and circulate throughout the world. It was precisely with these feelings that, in the case of an hon. member (Mr. Creevey), who was convicted of publishing elsewhere a speech which he had delivered in his place in that House, he was one of those who induced the House to determine, almost by an unanimous vote, that that conviction was riot a breach of their privileges. The highest constitutional authorities were with him upon that doctrine; and he remembered Mr. Fox to have once said, that although he might feel it his duty to employ language in that House, in the use of which his privilege would protect him, Yet he could also think, that if any printer dared afterwards to publish that language, he would by so doing render himself a fit object for prosecution. It was true, that the lord chancellor might, in the present case, have instituted a prosecution against the printer of the newspaper; but, would that have been a wise and dignified mode of proceeding? On the face of the language attributed by way of reply to the noble and learned lord, there was a manifest qualification: he began by saying, "It has been represented." He did not say where, or by whom; there was no direct personal allusion to any hon. member, still less was any desire avowed to touch any of their acknowledged privileges. If the chancellor had said, that he only commented on what was stated to have fallen from the hon. and learned gentleman opposite, he would venture to say that no member of that House would have treated the expression as a breach of privilege. Would the House, then, consider this a breach of privilege, merely because the chancellor had made this trifling omission? It had been said, that an attack was made by the chancellor on a member of that House, for delivering his sentiments 618 during a parliamentary inquiry into his conduct. Now, this was not a fair view of the question. It was not an attack, but a defence made by the chancellor against an imputation which he supposed to have been cast on his own conduct. Surely it was competent to any individual to repel a false charge; and the chancellor seeing it stated in a newspaper, that he had been charged with evading an act of parliament had declared it to bean utter falsehood. This might be thought an intemperate way of contradicting the charge: the noble and learned lord might have used more dignified, and measured language; but, could any man lay his hand on his heart, and say, that this flimsy distinction furnished a ground for treating the expressions as a breach of privilege? Even supposing the words to have been uttered, he was distinctly of Opinion, that it would not be proper to inquire in that House, whether they had been uttered or not, and he should therefore vote against all inquiry. The right hon. gentleman opposite had said, that what should ultimately be done, was one question, and that would be hereafter disposed of; but that what was now to be done was another and a distinct one. The fact, however was, that it was the same question; for if this motion were agreed to, they must examine witnesses and go into evidence at their bar, in order to inquire whether the words attributed to the noble and learned lord were ever uttered by him? And to this preliminary inquiry to be made as to whether the words had been so uttered he could not consent. Where was the corpus delicti in this case? Were the House to inquire who had committed an offence, before they had ascertained whether an offence had been committed? Would they put any man upon his trial for any offence, if the case should be that what had been done by the individual was in truth no offence at all? The hon. and learned member for Peterborough had discovered a singular mode of acting, which he thought ought to have been adopted by the noble person in question, but, which to him (Mr. Wynn) did appear the very oddest, and the most objectionable, that could have been suggested.' His hon. and learned friend thought, that the lord chancellor, upon seeing the offensive matter that had been attributed to the hon. and learned member for Calne, ought to have sent for that hon. and learned gentleman, a member of his own 619 bar and have asked him, whether he had used the terms that he was represented to have used. Why, had such a course been adopted, had such a message been sent to the hon. and learned gentleman—he himself would have been the first to protest, that it was the strangest proposition in the world. Was it ever before heard of, that a lord chancellor should send for any honourable member of that House, and ask him out of it, whether he had used such and such words in parliament? Had such a question been put to the hon. and learned member for Calne, and by him answered, the hon. and learned gentleman would himself have been liable to a vote of censure, for having given the explanation required by the lord chancellor. Without any reference to forms or cases, he was quite convinced, that no case could be produced, in which a simple denial by an individual, of a charge that had appeared against him in public, and had been circulated to all corners of the empire a simple assertion that that charge was false, had ever been considered as a fit subject for the exercise of the privileges of that House. He would conclude, by expressing his conviction, that if ever the House should think fit to inquire what words, in a case of this nature, had been used, it would inflict the greatest wound upon those privileges and upon the dignity of parliament that they could possibly sustain.
§ Mr. Scarlett, in explanation, observed that what he had said was, that it would have been natural to expect that the lord chancellor should have sent, in a private and confidential manner, for the hon. and learned member, and have asked him, whether he could have uttered the words attributed to him, as they seemed most extraordinary in the mouth of any one acquainted with the practice of the Chancery court.
§ Mr. W. Williamsconfessed that, generally speaking, he was not very friendly to the vigorous exertion and enforcement of the privileges of that House; and, during the time he had had the honour of a seat in parliament, he had witnessed several instances in which he thought they had been so exerted, under circumstances of considerable injustice to individuals. But in this case, the question was, not so much whether the House would enforce its privileges, as whether, when a grave charge was made against one of its members by an individual holding the highest judicial situation in the country, the 620 House would not inquire, whether or no a breach of those privileges had been committed? To him it seemed perfectly clear, that if the House meant to act consistently with its former proceedings in matters of privilege, it must accede to the vote which they were now called upon to give. And this seemed the more eligible course, because it would give the high personage in question an opportunity of coming down to-morrow, and of stating through some friend of his, that in what he had said he intended no attack upon any individual member of that House. If such a message should be sent to the House through the mouth of some friend of the lord chancellor tomorrow, after the question now proposed for the calling witnesses to their bar should have been carried, and when the House would be prepared to go into their evidence, he (Mr. W.) would certainly vote against any further proceedings in the business. But in the mean time, unless they meant to surrender every privilege of the House of Commons, they could not, he thought, stop where they now were. He did not, on the present occasion, mean to enter at all into the merits of the case before the House; because that would be to prejudge the question which they might afterwards have a more proper opportunity to determine. All that he, as an humble individual in that House, was at present qualified to say was, that a grave and serious charge had been made against one of its members, of having preferred a false accusation against a distinguished personage. Now, unless they were prepared to surrender to every man in the country the right and power of animadverting upon their proceedings in that House, in any way that might seem meet to him, he could not help thinking that they ought not to overlook such an attack upon one of their body, merely because it proceeded from so high a quarter. He had that night heard a right hon. gentleman opposite, whom he was accustomed to hear on all subjects with pleasure, with great surprise and concern. He certainly had not expected to hear that, right hon. gentleman, while he opposed the motion, enforcing, upon general principles, the privileges of this House, to a degree that seemed inconsistent with the constitution. For his own part, though unfriendly in general to their enforcement, he should not be wanting to support such a measure 621 on an occasion where he thought the House bound to assert its privileges. And if ever such an occasion offered, it was when an imputation of this nature was cast upon an hon. and learned member to whose character it was impossible to do too much honour, and which character rendered him incapable of advancing any thing that could warrant the charge of falsehood. If they put a negative upon this motion, they would at once surrender every privilege of the House. If, on the other hand, they agreed to it, and if the lord chancellor to-morrow, as a man of honour who had acted upon the irritation of the moment, or supposing himself to have been made the object of a false accusation, should send, through some friend of his, a message to the House, declaring he had acted on his feelings, and was sorry for what had occurred, he should think that what was due to the character of the House had been obtained, and that they would not be justified, in that event, in taking any further steps. Until this should be done, however, he was for the measure that had been recommended by the hon. gentlemen near him.
§ Mr. Abercromby, in reply, said, he should detain the House but for a very few moments. It was, indeed, unnecessary for him to do so, after the candid manner in which hon. members opposite had added their suffrages to those of his hon. friends, in expressing their conviction, that nothing which had been said by him, in the discharge of his duty as a member of that House, ought to have exposed him to the animadversions which had been made on his conduct. The paper in question undoubtedly did not contain a true report of what had been said by him in his place. With respect to the course which the House ought now to pursue, it would be for the House itself to determine. He should only beg leave to state the grounds on which he had acted in bringing forward, with as much impartiality as possible, a question in which he felt so deep a personal interest. It was obvious in the first place, that he might have taken a course which was not without precedent, namely, that of treating this as a transaction in which he himself was alone interested. But he felt that it would be impossible to bring the case before the House without considering it as one in which its own privileges were involved; and in taking this view of 622 it, he was influenced by another consideration, which operated strongly upon him namely, the duty which he owed to the profession of which he had the honour to be a member. He had taken the advice of those in whose judgment and experience he could best confide, who had recommended the course which they deemed most fit to be adopted. He had adopted that course and suggested it to the House; and he was still of opinion, that it was a judicious and a prudent course. He should, however, make no observation in support of it, but leave it to the House to decide upon it.
§ The House divided: Ayes 102. Noes 151. Majority against Mr. Abercromby's motion 49.
| List of the Minority. | |
| Allen, J. H. | James, W. |
| Althorp, visc. | Ingilby, sir W. |
| Acland, sir T. | Kennedy, T, F. |
| Baring, Alex. | Lamb, hon. G. |
| Baring, sir T. | Leycester, R. |
| Bennet, hon. H. G. | Lushington, S. |
| Benyon, B. | Leader, W. |
| Bernal, R. | Maberly, J. |
| Birch, J. | Mackintosh, sir J. |
| Brougham, H. | Martin, J. |
| Browne Dom. | Milton, visc. |
| Bright, H. | Moore, P. |
| Calcraft, J. | Newman, R. W. |
| Calcraft, J. H. | Newport, sir J. |
| Campbell, hon. G. P. | Ord, W. |
| Calvert, C. | Palmer, C. |
| Cavendish, C. | Philips, G. H. |
| Cavendish, H. | Price, R. |
| Chaloner, R. | Poyntz, W. S. |
| Clifton, visc. | Portman, E. B. |
| Coffin, sir I. | Ramsden, J. C. |
| Creevey, T. | Rice, T. S. |
| Crompton, S. | Robarts, A. |
| Curwen, J. C. | Robarts, G. |
| Davies, T. H. | Robinson, sir G. |
| Denison, W. | Rowley, sir W. |
| Denison, E. | Rumbold, C. E. |
| Denman, T. | Rickford, W. |
| Davenport, D. | Scarlett, J. |
| Ellis, E. | Sefton, earl of |
| Evans, W. | Stanley, lord |
| Ellis, hon. G. A. | Stanley, hon. E. |
| Farrand, R. | Staunton, sir G. |
| Grattan, J. | Smith, R. |
| Grenfell, P. | Smith, W. |
| Guise, sir B. W. | Smith, J. |
| Gordon, R. | Smith, G. |
| Haldimand, W. | Smith, S. |
| Hamilton, lord A. | Smith, A. |
| Heathcote, J. G. | Stuart, lord J. |
| Heron, sir R. | Sykes, D |
| Honywood, W. P. | Tremayne, S. H. |
| Hume, J. | Taylor, C. |
| Hurst, R. | Tennyson, C. |
| Hutchinson, hon.C. H. | Tierney, rt. hon. G. |
| Tulk, C. A. | Wilson, T. C. |
| Warre, J. A. | Wood, M. |
| Webb, E. | Wyvill, M. |
| Western, C. C. | Wrottesley, sir John |
| Whitbread, S. C. | Wilberforce, W. |
| Whitbread, W. | TELLERS. |
| Williams, W. | Abercromby, hon. J. |
| Wilson, sir R. | Duncannon, vics. |