PRIVILEGES—JOURNALS OF THE HOUSE. (Hansard, 25 June 1832)

§ Mr. Harvey
said, he was charged to present to the House a Petition which seemed to him to deserve more than ordinary attention. It was the petition of Charles Houghton Walker, an Attorney, whose conduct had been made, in no very measured terms, the subject of animadversion within those walls, by a learned and hon. Member, who revised the libel previous to its appearing in The Mirror of Parliament, for which Mr. Walker had brought his action last year, but was defeated, in consequence of that House having refused to allow the proper person to attend with the Journals in the Court of King's Bench at the trial, to prove that such a petition had been presented. That action having failed, the petitioner indicted the hon. and learned Member: a true bill was found by the Grand Jury, and the cause removed to the Court of King's Bench, which was set down for trial to-morrow morning. No time was, therefore, to be lost, and the petitioner came there by the advice of his Counsel—two hon. Members of that House—who had given it as their opinion, when consulting upon the evidence to be adduced at the trial, that the petitioner could not safely go into Court without the Journals of the House to prove that fact, stated in the prefatory part of the indictment—namely, that such a petition had been presented as that upon which the speech of the hon. and learned Member (Dr. Lushington), now indicted, was delivered. Hitherto the House had not acquiesced in such a proposition, or sanctioned it by any precedent on record; but he was induced to hope the House would see, that its privileges were only to be asserted in defence of, and for the preservation of, the liberty of the subject, and acquiesce in the prayer of the petitioner. He moved, That the proper officer attend with the Journals of the House in the Court of King's Bench to-morrow morning.

Mr. O'Connell
seconded the Motion.

§ The Speaker
Before the House comes 1002 to any decision, I beg to acquaint, the House with what steps I have been called on to take on this occasion. I received on Saturday, while in this House, a letter from the Solicitors of the parties, requesting that I would give directions to the proper officer to attend with the Journals—not with the petition, for of that nothing was said—in order that it might be proved in Court that such petition was presented to the House. The letter also stated, that it was important that no time should be lost, as the trial was to come on (I think) this day. It was necessary, therefore, that I should give an immediate answer. The answer that I gave was, that inasmuch as the production of the Journals, with a view to prove anything in a Court of Law, was a thing affecting the privileges of this House, I should take the same course which I had taken on a former occasion, while the House was sitting, and call on the parties to put the House in possession of facts, so that the step might not be taken without full sanction and authority. It is, perhaps, right that I should state, that in 1831 a petition was presented, praying that the petition to which the present application refers might be produced in a Court of Law; and the House, on that occasion, negatived the prayer of the petition. I also stated, in answer to the letter addressed to me on Saturday, that if any inconvenient delay occurred, it was not attributable to me, but to the parties themselves, who did not make the application till the Saturday, with the knowledge that the cause was to come on for trial on the Monday. These are the reasons for the course that I have pursued. I have already referred to the former case, on which the House has given a decision; and the application now is, to reverse that decision of the House, as far as the petition is concerned, and further, to grant that the Journals, showing bow that petition was dealt with, may be produced in a Court of Law, with reference, therefore, not to the publication contained in The Mirror of Parliament, but to something that has passed in this House.

§ Mr. Harvey
The petition does not refer to the production of the other petition.

§ The Speaker
I applied myself to the Motion that has been made, which has reference both to the petition and to the. Journals of the House.

§ Mr. Harvey
Then I beg leave to confine my Motion to the production of the Journals alone.

§ Lord Althorp
It appears that the only 1003 object for which the production of our Journals in a Court of Law is asked, is to prove something not stated in the proceedings of this House, but in a paper that professes to give reports of the proceedings of this House. It seems to me, however, that the only object for the production of our Journals is, that reference may be had to the words spoken by a Member of this House in debate; and it certainly is contrary to the Privileges of Parliament that what is spoken in this House should be in any way taken into consideration in a Court of Justice. Therefore, whether the question is for the petition or for the Journals, I think that we are bound, looking at our own privileges, to refuse this request. I certainly, however, speak with great doubt and hesitation on the subject; for I do not profess to be sufficiently conversant with the precedents in this instance; but it nevertheless occurs to me, that this ought to be the course for us to pursue.

Mr. O'Connell
I rather think that the noble Lord is under a misapprehension on a point of fact. It is certainly not necessary, and, indeed, it would not be allowed, that what a Member spoke in this House should be produced in evidence in a Court of Justice. But in an indictment it is necessary that certain introductory averments should be made, and in this case one of those averments is, that a petition was presented in this House; and it is merely with a view to the proving of that fact that the Journals are asked for, which fact it is absolutely necessary to prove. This, therefore, is not a circumstance which has any reference to liberty of speech in this House—it solely has reference to the dry business of the House; and if we prevent its being proved, by the only legal evidence that can be given, we shall be making a rule to the effect, that every fact proveable by the Journals of this House shall never find their way into a Court of Law. As an illustration in point, I may mention, that lately in Ireland it was necessary to prove the exact dates when a certain nobleman (who, at the time in question, was a Member of the Commons' House) was in Dublin; and for this purpose the Journals of the Irish House of Commons were admitted as evidence. It, therefore, seems to me, that the noble Lord is under a misapprehension of the legal effect of what is required, and of the ground on which that request has been made.

§ Lord Althorp
It is very possible that I may be under a misapprehension; but it 1004 appears to me, that in the case to which the hon. and learned Gentleman has referred, what was required was, something that was actually in the Journals themselves; and I see no objection to the Journals being produced, unless with reference to the point at issue. This matter, if a libel, is only a libel as having appeared in The Mirror of Parliament, and whether it was previously uttered in this House is of no importance whatever; therefore, I cannot see how it is essential to the justice of the case to prove that a certain petition was presented on a certain day. This being the case, it appears to me that the production of the Journals must have reference to what has taken place in this House, in which case, I think that we shall be rather trenching on our privileges if we allow an officer to attend with the Journals.

Mr. Hume
Having been the person who presented the former petition, I am able to state, that this complaint has arisen, not on what fell from me, but on what subsequently occurred in the debate. All that is now wanted is, the Journals to substantiate the proof of the presentation of the petition; and I certainly do not know why we are to stand in the way of justice being done between two parties. I am not aware that it will interfere with the privileges of Parliament, and, indeed, if I were, I would not press the matter any further on the attention of the House. I, therefore, trust that the noble Lord will not object to the production of the Journals as requested.

Sir Robert Peel
This certainly appears to me to be a question of great difficulty. This is an indictment for libel against The Mirror of Parliament.

Mr. O'Connell
No; against Dr. Lushington, for something that he has published in The Mirror of Parliament.

Sir Robert Peel
In that case, Dr. Lushington can claim no more protection than if he were altogether unconnected with this House; and, assuming that this case does not differ from others, then comes the question—are we not bound to do all in our power to facilitate the execution of justice? The House of Commons exercises a general superintendance over the Courts of Justice, and, on that principle, we surely ought to further the progress of the law, whenever we can do it without trenching on our own privileges. Then, supposing that the production of the Journals is necessary for the averment, is it not our duty to facilitate justice by allowing the pro- 1005 duction of the Journals?—and, connecting this chain of reasoning, I do not see how we can refuse to produce them. If, indeed, this was an indictment against a Member for what he had said in this House, then the case would be very different; but if this cannot be distinguished from an ordinary libel case, I do not see how we can refuse to comply with the prayer of the petition. But, at all events, I think that it ought to be unquestionably proved that the production of the Journals is absolutely necessary; and, therefore, I do not see why we ought not to appoint a Committee to search the Journals, and report on the precedents to the House.

§ Lord Althorp
I concur with the right hon. Gentleman that this is a case of considerable difficulty, and I must say, that I speak with diffidence on it, for my studies have not been very frequently directed to the Journals of the House. The production of our Journals, certainly, would not be a Breach of Privilege, if merely on that evidence the proof of a dry fact was to be established; but, at all events, we ought perfectly to ascertain the necessity of this evidence being produced; and I must again repeat, that I cannot understand why, in order to prove a libel in The Mirror Parliament, it is necessary to produce the Journals of this House. I think the appointment of a Committee may be a very proper thing; but, before that is agreed to, I should like to hear your opinion, Sir, as to whether this is a case in which we ought to refuse the Journals or not.

§ The Speaker
The noble Lord having referred to me, I will state the view that I took of this subject when this application was made to me on Saturday. In the first place, I should not feel, whichever way the House decided, that this was a decision that the Journals of the House of Commons were never to be produced in a Court of Law, if they were wanted for the purposes of justice. Every case must be decided on its own merits; and whether the production is refused or not must entirely depend on how far each individual case interferes with the privileges of this House. Looking to this particular case, I did not feel it necessary to go more minutely into the investigation; first, because the Parliament was sitting, and the responsibility, therefore, did not rest on me; and further, because a very short time had been allowed for my answer. This libel, if it is a libel, is indictable because it has been published in The Mirror of Parlia- 1006 ment; and it would not have been indictable if the speech which it purports to be, had been confined within these walls. The offence, therefore, is complete, by the publication of the paper; and the production of our. Journals can have nothing to do with proving the publication of The Mirror of Parliament. If, therefore, the Journals are called for with reference to the libel, that will be carrying the libel one step further back than The Mirror of Parliament, and be introducing that which has taken place within the walls of Parliament itself. This, then, was the difficulty that I felt, and that I still feel. When it is stated that the Journals are necessary because the indictment wears a particular shape, I do not see, that because the introduction of such an averment has been deemed necessary for the drawing up of the indictment, it necessarily follows, that the proof of that averment is necessary to the forwarding of justice; because, for anything we know, an equally effectual indictment might have been drawn up in another way. But in addition to this, I was bound to remember that, in 1831, an application on this subject, though not exactly similar in its purport, was made to the House, which application the House, on consideration, negatived. These were the circumstances which convinced me that I ought, at all events, to leave the matter to the decision of the House; and as to how far the privileges of the House are involved in the production of the Journals, that must depend on how far that production is asked with a view of involving that which passed within these walls in discussion in the Court below; amid if what did pass here is material to the case, the House, no doubt, will feel that they are not at liberty to give that furtherance to the prosecution which is requested.

§ Mr. Harvey
admitted, that the Journals of the House were not to be produced as a matter of course, but the question here was, whether the production was essential to the course of justice. Now, he could say, that the party prosecuting had the advantage of the talents and advice of two learned Gentlemen who were Members of the House, who, after a conference, had stated as their opinion, that he could not go to trial, with a probability of success, without the production of these Journals. He should be glad to hear the hon. and learned Gentleman, the member for Stafford (Mr. John Campbell), on this point.

Mr. O'Connell
said, that if the indictment was so drawn, the proof by this means 1007 was necessary; of course, if it had not been drawn with such an averment, no such proof would have been necessary. These averments, though in some cases not proved, were necessary to connect the sense or meaning of the indictment.

§ Mr. John Campbell
Being Counsel for the prosecution in this case, I had determined to abstain from all remark; but after the appeal that has been made to me, I have no difficulty in stating, that I believe it to be material to the interests of justice that the Journals of this House should be produced. In the indictment, there is an introductory averment, stating that a petition was presented to this House. That averment does not, in any way, touch any discussion that took place here. It is the averment of a dry fact; and the alleged libel having reference to the presentation of that petition, it may be material that the Journals should be produced. For my own part, I do not see how the privileges of the House can in any way be compromised, for the production of the Journals can tend to no inquiry as to what took place in the House. Allow me also, now that I am on my legs, to state, that at the last Sittings before Lord Tenterden, Mr. Bell attended and produced the Journals of the House showing, that in the reign of George 3rd, the Benchers of Gray's Inn petitioned to take Gray's Inn out of the parish of St. Andrew, Holborn. Evidence was also given of the progress of the bill brought in for that purpose, and surely the privileges of Parliament were not compromised by this.

Sir Robert Peel
said, that it was very possible, and he could easily conceive, that as the indictment was now drawn, the non-production of the Journals might defeat the ends of justice. If, however, it could be shown that the averment was not necessary, or that it was a departure from the usual course of practice, he should pause before he gave his consent for the production of the Journals.

Mr. Stanley
said, the hon. and learned Gentleman, the member for Stafford, had not stated the necessity of this averment, for on this the great difficulty arose. The hon. and learned Gentleman ought to have gone one step further beyond his statement that the production of the Journals was material, and have informed the House, that in order to maintain the indictment, it was absolutely necessary to introduce into it the averment which makes the production of the Journals necessary.

Mr. Goulbnrn
thought, that something more was sought by the production of the Journals than had yet appeared to the House. He thought, after looking over the petition, that the parties sought to aggravate the libel which formed the subject of the indictment, by bringing evidence forward of a speech subsequently delivered in this House by Dr. Lushington, in which that hon. and learned Gentleman stated, in allusion to the former speech, that he would not retract one syllable of what he had before said. This was set forth in the petition now before the House.

Sir Thomas Freemantle
thought, that as the House was still in doubt as to the necessity of the averment which required the production of the Journals, it would be satisfactory—at least it would be so to himself—to call the Solicitor or Counsel who prepared the indictment to the Bar of the House, and ask them the question whether or not such averment was necessary to support the indictment.

§ Mr. Burge
considered it to be manifest, that no learned Counsel would introduce such an averment unless it was essential to the indictment, and according to the strict rules of pleading. As far as his own judgment went, he thought the averment was absolutely necessary.

Mr. Slaney
would venture to assert, that many unnecessary averments were often introduced into indictments, and as the necessity of the averment in the present case had not been shown, the House was not called upon to consent to the production of its Journals. Supposing the averment in the present case had been introduced for the purpose of getting in that way at the subject matter of what had taken place in this House, he did not see how a line was to be drawn with regard to the production of the Journals, and he thought, that it would be a very dangerous precedent.

Mr. J. L. Knight
concurred with the hon. Gentleman who had just sat down, and that averments might be introduced into indictments which it was unnecessary to prove. He apprehended the House was bound to require some evidence, that the production of the petition was necessary for the purpose of justice, before the House should acquiesce, or consent to it. It appeared to him that the existence of the petition did not at all affect the case, and nothing could be more improbable in his judgment, than that proof of the petition was at all necessary. He would vote against the production until he was satis- 1009 fied that it was necessary for the ends of justice, and in his conscience he did not believe in the present instance that it was.

§ Mr. Jones
said, that as the ends of justice would be defeated by the non-production of the Journals he should support the motion.

§ Sir George Clerk
considered, that as it was sought by the production of the Journals to make out that Dr. Lushington had made some such speech as that alleged in the libel on the presentation of the petition in question, the production of the Journals could not be granted without involving the privileges of the House. It was impossible that the House could recognize the publication of The Mirror of Parliament, though it might connive at it, for the purpose of affording useful information to the public. The publication stood by itself, and if it was libellous, it was immaterial whether Dr. Lushington had made such a speech and afterwards corrected it. He should therefore vote against the prayer of the petition.

§ Mr. Harvey
said, that the question was now narrowed simply to whether or not the averment was necessary to be introduced into the indictment, and he would rather not divide the House upon the motion at present. Although the indictment stood for trial to-morrow, yet he thought that if Counsel stated what had passed in the House to-day, he could not doubt, he repeated, that if what had transpired was communicated to the Court of King's Bench, the case would be postponed until the following morning: and he would suggest that the Counsel or solicitor who had drawn up the indictment should attend the House tomorrow for the purpose of stating, ay or no whether or not the averment was necessary. The House requested to be satisfied on this point, and he knew no other mode of informing the House. The House might sit until to-morrow morning hearing the opinions of lawyers without coming to any decision and would have as many opinions on the point as there were lawyers in the House. He should wish at some stage to divide the House, in order to show that the party had done all in his power to obtain this evidence, and thus the best secondary evidence might be let in, but he trusted the House would not oblige him to such a course.

§ Mr. Courtenay
said, that even if the hon. and learned Gentleman, the member for Stafford, had stated, that the averment was unnecessary, his opinion on the prayer 1010 of the petition before the House would remain unchanged and with it he could not agree.

§ Mr. John Campbell
said, that he was most anxious to be rightly understood. He did not offer any opinion as to the allegation contained in this averment being indispensably necessary. He had not drawn the indictment, and if he had, he certainly should not have included any such averment. On being appealed to by the hon. Gentleman, he said, that as the indictment now stood, it was very desirable that the Journals should be produced. It had been his resolution not to have taken part in this discussion; but by that appeal he was compelled to present himself before the House.

§ Sir Matthew White Ridley
could not agree to the proposition of the hon. member for Colchester; for the production of the Journals to support the averment, which it now appeared was unnecessary, would bring the proceedings of this House under discussion in the Court below.

§ Mr. Harvey
said, that after what had fallen from the hon. and learned Gentleman, the member for Stafford, he would beg leave to withdraw his motion.