§ Viscount Howick
rose to propose that the motion of which he had given notice should stand next on the orders, as it related to a question of privilege, and he thought he would be justified in proceeding with it.
§ Sir W. Molesworth
said, he did not consider the question to be one of privilege, and refused to give way to the noble Lord.
§ Lord John Russell
observed, that as persons were every moment liable to be proceeded against by action founded on the publication of the papers of that House, he thought it necessary that they should not lose any time in coming to some definitive resolution on the subject.
§ The Speaker
said, that this was a case which affected one of the most important privileges of that House. If the question were simply one for discussion, and not coming before them in the shape it did, it might be difficult to say that it was entitled to the precedence of the other motions; but the circumstance stated by the noble Lord altered its position, and showed that it was expected that the question would be raised again, which rendered it most important that the House should come to an immediate decision upon it, in order that parties who might have an action brought against them should know, according to the opinion of the House, what course they ought to pursue.
§ Viscount Howick
proceeded: His object was, to move certain resolutions founded on the Report of the Committee on the publication of printed papers, of which Committee he had had the honour to be chairman. To that Committee had been referred the consideration of the proceedings at Nisi Prius in the case of Stockdale v. Hansard and others. Since the presentation of the Report of that Committee a second action had been brought by the same parties in the Court of King's Bench; and it became expedient, therefore, on the part of the House, to take some step preliminary to that proceeding, in order that all doubt on the subject might be set at rest. The Committee to which he had alluded reported it as their opinion,That the power of publishing such of its 1114 reports, votes, and proceedings as it shall be necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially of this House, as the representative portion of it.That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment con. sequent thereon.That for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament thereon, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament.These Resolutions he meant to propose the House should affirm. The printing and publishing of their proceedings had continued uninterruptedly from the year 1641, with one single exception, up to the period of the late trial. The publication of their papers had therefore tacitly received the protection of law, and he conceived that no privilege could rest upon a clearer proof or stronger foundation. The exception to which he alluded was in the case of Sir William Williams, Speaker of the House of Commons, who had been fined, and he believed actually obliged to pay, 8,000l. Since the Revolution, however, to the present time, they had enjoyed the privilege interruptedly of publishing their proceedings. He contended, therefore, that the House had a right to determine finally, and without appeal, what its privileges were. One of the resolutions he had to propose asserted, that the Parliament was the sole judge, and had the sole right of judging, what their privileges were, and that the House of Commons was competent to exercise that right as regarded its own privileges. When, therefore, that House declared what its privileges were, they should not be liable to be set aside or reversed by any other authority or tribunal. It had been stated, that conferring so much power as was proposed by the resolutions adopted by the Committee might lead to serious abuse and inconvenience. He was far from saying that any human institution could be free from abuse—it was clearly impossible to find any authority of which 1115 there could be a certainty that in no possible instance it could be abused; but, at the same time, he thought that those who entertained those fears ought to remember, that if they refused to the House of Commons the power of determining what were its own privileges, they would not even then escape from the difficulty, because other authorities to which they would give the control would be equally open to usurpation and abuse as the House of Commons itself. If it was held that the courts of law should review, and be competent to reverse the decisions of this House, what security was there that the courts of law might not be equally guilty of error us the House itself? If regard was had to the past history—to the times when the princes of the house of Stuart made a systematic attack upon the institutions of the country, and when the courts of law assumed the power of deciding what was and what was not the power of Parliament, it would be seen that if that power was once established, the most essential of the Privileges of Parliament—privileges necessary for the protection of the House—would speedily have been lost, and with them all security for the liberties of the country. He trusted the House would, by adopting the resolutions he had read, solemnly enforce the principle the Committee had adopted. When persons in or out of the House urged that, by claiming so great a power as might give rise to great abuse and to tyrannical usurpation on the part of the House, his answer was, that every form of Government must have some authority to be trusted in the last resource, and he could not conceive why that authority should not be placed in the supreme Legislature of the country; and he would contend, that by claiming that authority for Parliament, a real protection against its abuse was afforded to the people, not by a formal appeal to a legal tribunal, but by an appeal to public opinion and the general sense of the country. In former times that appeal had succeeded, and had compelled this House to reverse its own decisions. He would only mention one famous case out of many—the case of the dispute which lasted so long between this House and Mr. Wilkes. The House having declared that Mr. Wilkes, though returned by a large majority of the electors of Middlesex, should not sit, and thereby deprived, as it were, the electors of the right to return him, public 1116 opinion was so strongly pronounced against that decision, that in a very few-years afterwards the House was compelled to retrace its steps, and to expunge from its journals its former resolution. In the same manner he believed that if the House should decide contrary to the exercise of just authority, public opinion would not be slow to force it to retrace its steps. He was convinced that the more the subject was discussed and considered, the stronger would be the conviction both of the House and the country that these privileges ought to be secured in the manner he proposed, as being absolutely necessary to the House for the true discharge of its functions as a separate branch of the Legislature. The present question was not whether Parliamentary papers should be sold by Mr. Hansard, or not, neither was it now to be determined what should be the proper mode of their distribution, but the question was, whether the House should be altogether excluded from the power of communicating, through the means of the press, with those whom it represented. If the House was so excluded, it would be impossible for it to exercise its functions with advantage, and therefore, on the ground of public necessity, he thought it was the duty of the House to claim and maintain all those privileges which it had hitherto enjoyed. He trusted such an expressed and solemn declaration as the resolutions conveyed would be sufficient to prevent any further interference with those privileges; but if those expectations should be disappointed, he thought it would be the duty of the House to take such measures as would be necessary to assert its rights, and repel any attempted invasion or infringement of its privileges, Until the necessity occurred, it was superfluous to advert to what those measures ought to be; he did not doubt but that the House would be able to maintain its authority, and he should now content himself with simply moving the adoption of the resolutions which he had already read as drawn up by the Committee.
§ Sir R. Inglis
said, that having unfortunately been in a minority in the Select Committee, to whose Report the noble Lord had referred, he owed it to his own consistency to state publicly to the House what he had already said privately in Committee on this subject. In the first place, however, he could not but think that the noble Lord would have consulted 1117 the convenience of the House much more if he had postponed the discussion on this subject till another day. The state of the House at present, a House of about fifty-six Members, showed either the very little interest which was entertained upon the subject; or the thinness of the attendance was a proof that the noble Lord had taken the House by surprise. He regretted to see a much thinner House during the discussion of so important a question than assembles, ordinarily, to decide upon a Railway Bill, or than assembled in the earlier part of this evening to decide whether Stephenson's or Rennie's was the best line to Brighton. In fact, five-sixths of those then present had since left the House. For himself, he was one of those who had been taken by surprise on this occasion; not holding the motion to be entitled to precedence as a question of Privilege, and having expected a very different subject to be brought on, in its turn as it stood first. Under no circumstances, however, could he refrain from stating to the House his objections to the resolutions in question. Without further urging the opinion that the adoption of the resolutions moved by the noble Lord by so thin a House could have but little moral weight with the country. He would ask, what would be, under any circumstances, the value of those resolutions, even if adopted by the other House? What was the value of a resolution of this House, or of both Houses, upon a question connected with the law of the country? He apprehended that nothing but an Act of Parliament could require or justify any of those learned persons who administer the law to regard a communication of those resolutions as part of the law which they had sworn to administer. The judges were not sworn, nor could they be required, to administer the communicated resolutions of the House. He entreated the attention of the House and of the learned Attorney-General to the two points which he (Sir R. Inglis) raised. First, was there any mode of communicating the resolutions of the House to the judges in their several courts; and, secondly, if there existed any such mode, whether the judges would be called on to take notice of them? Was the House prepared to make the paper placed by the noble Lord opposite in the hand of the Chair nothing more than a mere brutum fulmen? The House was bound to consider the alternative: they had no right to suppose that the judges would at once 1118 obey their resolutions; and it was the duty, therefore, of the House to consider whether it were prepared to carry those resolutions into effect, and to cite, to summon, and to punish, the judges of the land, in case of their refusal to act upon the resolutions as upon law. Was the House prepared in case of such refusal, to send its messengers to seize any of the judges on the bench and to convey them to Newgate? The House must anticipate some crisis of this kind, or they were not fit to be legislators. In the particular instance the noble and learned judge, whose charge had led to the present proceeding, was a peer of the realm, and would not therefore be subject to such a summary jurisdiction exercised by that House; but there were other judges, not less firm, and whose opinions on this question could not be assumed to differ from the noble and learned Lord, who, under these resolutions, would not be protected by the privilege of the peerage, in holding the same doctrines as the noble and learned individual to whom he referred. Was the noble Lord opposite prepared to send them to Newgate, and if so, was the House prepared—was the country prepared—to support the noble Lord in such a proceeding? He (Sir R. Inglis) believed that such an attempt on the part of the House to interfere with the judicial administration of justice, would be met by a feeling which he could not trust himself to describe, but which he was certain would be the reverse of respect, of confidence, and of acquiescence. Looking at the empty benches on both sides, when the noble Lord rose, he could not help repeating, that the noble Lord gained little support of opinion by passing his resolutions in so thin a House, and in the absence of so many hon. and learned Members whose sentiments on a question of this kind the House would have been most anxious to hear. He would now proceed to state his own general view of the question. In the Committee, he (Sir R. Inglis) had made a broad distinction between the publications which the House printed for its own use and those printed for the use and information of the public. The House had a perfect right to print evidence and reports which might or might not affect the characters of individuals: but the distinction which he had drawn in Committee, and which he now repeated, was, that the House was not at liberty to print such things as reflected in any way upon character except for the use of its own Members only. Was it necessary, or 1119 could it conduce to public benefit and advantage, that the House should print libels and circulate them throughout the country? Was it not an aggravation of the wrong done to an individual that a libel, needful only to those who were to be the judges upon the case, should be printed and circulated at the public expense to all the fellow subjects of the party injured throughout the land? He (Sir R. Inglis) had raised the same objections last year, when the hon. Member for Middlesex proposed that the publications of the House should be sold under its authority. He had then told the hon. Member that by his arrangement the House would publish more books than any firm in London, and would, in fact, become a great bookselling establishment. And so it was, but it ought not to be enabled to publish libels with impunity. The series of precedents which had been collected with great research and ability by the hon. and learned Member for Newark, had all, with the exception of that of Sir W. Williams, been cases in which parties had libelled the House, and were not cases where, as in the present instance, the House had libelled others, and therefore no analogy could be said to exist. Whatever might have been held, before the case of Burdett v. Abbot, in the Court of King's Bench, nobody could now deny that the House had full power to punish libels against itself. But was it to be permitted to publish libels against others with impunity? The privilege now claimed went, indeed, still further, because it rested on the ground that, whatever the House of Commons might do, no court of law had a right to question it, and none of the fellow subjects of this House could claim protection or compensation against it. To take an obvious instance: was it to be said, that if the House published in one of its Reports a book, the copyright of which was private property, the owner was to go without redress? It had been said, that by continuing the power no excess in its exercise need be feared. He would refer to the treatment of the House towards an individual in the year 1621; he alluded to Floyd's case. It was in substance this; that for words alleged to be spoken in disparagement of the daughter and son-in-law of King James 1st, calling them the good man Palsgrave, and the good wife Palsgrave, and expressing joy at their defeat, this unhappy person was sentenced to be fined 1,000l., to ride with his face to the horse's tail from Westminster to Newgate, 1120 to be whipped there, and to be imprisoned, he believed, for life. Had the House of Commons a right to exercise this power, then, for that alleged offence, or for any offence at all? If so, it has the same right now. Is that claimed? If not, then another century may regard the present claim of the present House to publish libels with impunity, as unfavourably as the whole country now regards the conduct of the House of Commons in the case of Floyd. The House must not forget that privilege is one: if the House have a right, constitutionally, to any particular privilege to-day, it has a right to it tomorrow; and again, it has the same right now which it had two centuries ago. He contended, on the contrary, that they had no such right then, and have no such right now. As for the resolutions proposed, he felt convinced that even if adopted they would be impracticable, and with that view he thought the wiser course for the noble Lord opposite would be to proceed to the other orders of the day. If that suggestion were not followed, he should feel it his duty (very reluctantly, for he was anxious not to record any definitions of privilege, or any abstract principle) to move an amendment upon the resolutions proposed. Before he did so, he must say that the country was deeply indebted to the noble and learned Lord, whose charge had brought this question under consideration. He (Sir R. Inglis) had always held that if it were compulsory to live under tyranny, it was better to live under the tyranny of one man than under that of a majority of 658 men. He feared that in an assembly where party feeling, even on private Bills, dictated certain courses, that under these resolutions the "tyrant majority" of the House, as his right hon. Friend (Sir Robert Peel) had on a former occasion termed it, would be fatal to the liberties and best interests of many of their fellow-subjects. Let the House continue to print reports, evidence, and information as it thought fit for the use of its own Members, but not for the whole world; but let it not, under pretence of protecting its own liberties, infringe upon the rights of individuals; and let it not, when it took the law into its own hands, and claimed the right of punishing libels upon itself, claim, also, the irresponsible power of libelling, to any extent that caprice might suggest its own fellow-subjects. The hon. Baronet in conclusion moved as an amendment the following resolutions:— 1121That the privileges claimed by this House from the King at the opening of each Parliament, and granted by the King, and also the other privileges pertaining to this House, which have been recognised by the courts of law within the realm (the same being privileges for maintaining the freedom of debate within the House and the security of the persons of Members thereof from arbitrary violence, and from all arrest, except by courts of law for contempt, or in execution of criminal process), are essentially necessary to the existence and integrity of this House as a body summoned to counsel the King touching the arduous affairs of Church and State; and that any person offending against such privileges is guilty of a violation of the law of Parliament.That the right to punish persons guilty of such offences, whether such offences were by interrupting the freedom of debate within the House, either by direct violence, by threat to any Member thereof, by publishing any libel against the proceedings of the House, or were by contempt of the House before it, or were by arrest of any Members thereof other than in execution of lawful process, as aforesaid, hath been repeatedly claimed and enforced by the authority of the House, and that no other authority hath or ought to have any jurisdiction whatever in limiting the exercise of the powers of the House in punishing all persons so offending.That although the House hath occasionally addressed the King to direct his Majesty's Attorney-General to prosecute offenders for publishing libels against the proceedings of this House, yet that this House hath likewise an undoubted right to inquire into all libels against its authority or proceedings, and to punish the same accordingly, as breaches of its privileges.That no Member of this House hath any claim of privilege in respect to the publication of any matter or thing purporting to be his speech, which by due course of law may be found to be a libel, and that this House hath never interfered, and ought not to interfere, in any legal proceedings instituted thereon.That this House doth not claim any right, and that no other body of his Majesty's subjects hath any right, to publish any matter or thing which by law would be adjudged to be a libel if contained in an unauthorised publication, or to do anything which by law would be adjudged to be trespass, or any personal injury.That the printing of papers presented to this House, whether the same be accounts, reports, or otherwise, is or ought to be, for the use of Members of this House, and, as such, ought to be publication privileged; but that any sale or dispersal of such papers to any but to Members of this House is, and ought to be, publication not privileged.That while this House will resent and resist every attempt on the part of others to 1122 libel its proceedings, it does not claim, and ought not to claim, any exemption on the part of its Speaker, or any of its officers, from any legal liability to which its proceedings may be subject; and that any publication which would be a libel against an individual, if proceeding from another individual, is a libel if published by this House, any claim of privilege notwithstanding except as aforesaid; and that any act which would be adjudged by law to be a trespass or personal injury, if committed by an individual, is a trespass or personal injury if committed by order of this House, any claim of privilege notwithstanding except as aforesaid.
§ The Attorney-General
would state shortly his reasons for concurring in the resolutions proposed by his noble Friend, and for opposing those moved by the hon. Baronet, the Member for the University of Oxford. That hon. Gentleman had regretted the thinness of the House, and that the feeling of the House had given way for the introduction of the subject. He could not join in that regret, because he believed those two very circumstances indicated that the House was nearly, if not altogether, unanimously in favour of the resolutions of the noble Lord. Looking at the constitution of the Committee, it would be seen that it had been formed without any reference to party, and it would be found also, that no one had opposed the resolutions of that Committee but the hon. Baronet, who stood quite alone. When he first had the subject under his consideration, he was very much inclined to think that there was a distinction between printing for the House and for the public, and that was the line of argument he took before Lord Chief Justice Denman, but upon maturer deliberation, he was convinced that such a distinction was wholly untenable. As the law now stood, an action might be brought against him for allowing a friend who visited his library to read any book or report which happened to have been printed by the House for the purpose of giving information to the Members thereof on the subject on which they were called to legislate, and he was very much afraid that an action might be brought against the Speaker himself. He believed that right hon. Gentleman and his predecessors had been in the habit of allowing persons to read papers which had been printed for the use of the Members of that House, and therefore, even under the view taken by the hon. Baronet, the Member for the University of Oxford, an 1123 action might be brought against him, and he might be committed to Newgate by the Court of King's Bench for having acted merely in discharge of his duty as Speaker of the House of Commons. It seemed to him impossible that they could discharge their duty as representatives of the people, if their privilege in this respect was restricted as the hon. Baronet wished. He contended, not that they were seeking to uphold the privileges of the House merely, but the privileges of the people of England, because their constituents had a right to know what they were doing. Were they to legislate in the dark? Were they to have the right of making Acts of Parliament without letting the people know what they were? Suppose a Bill happened to be before the House which would seriously affect the interests of his constituents, was he to be precluded from sending copies of it down to them, in order to give them an opportunity of preparing for the defence and protection of their rights? With regard to what the hon. Baronet had said about the publication of reports and papers concerning our colonial policy, he would ask him to look at the slave trade question. While that subject was under discussion, were not reports published and circulated which contained many grave charges against various persons? And though actions might have been founded on the accusations so made, he ventured to say, that the House never would have been able to carry the measure which it then had in hand, but for the dissemination of the information contained in those reports. He was convinced that they could not possibly do their duty without the full privilege of communicating with their constituents on every subject under consideration. In claiming that he claimed no new privilege. From the year 1641 down to 1837, it had been the uniform' and uninterrupted practice of the House to print and circulate public documents. The Courts, therefore, ought not to deal severely with any individual who might have acted under the authority of this established custom. Was not that House entitled to the same privilege which the courts of law enjoyed? It had been determined over and over again that the publication of proceedings in courts of justice was not liable to an action. And why? Because the publication was considered to be beneficial to the people, even though the 1124 character of some individuals might suffer by it. The laws of the land were not to be administered with closed doors. In the case of "The King and Wright," Lord Kenyon decided gravely, that the privilege went much further than the Committee had contended for in the present case. Lord Kenyon said, that what the House had ordered to be published could not be liable to an action as a libel. The resolutions proposed by the hon. Baronet, as amendments, were mere truisms; and, considering that the House ought to express a decided opinion on this subject, he should call upon it to support the resolutions of the noble Lord. Another action was pending against the same party whose case had originated this discussion, and it was absolutely necessary that the House should either say that their privileges must be maintained, or at once waive them altogether. Believing that those privileges formed part of the law of the land, he called on the House to maintain them. He hoped the vote they would come to would have weight with the country, and put an end to the paltry and pettifogging proceedings which had been brought under the notice of the House.
hoped the House would pause before it adopted the resolutions of the noble Lord. The question which they had to decide was, whether an individual whose character had been slandered and ruined should be dispossessed of his just right to vindicate himself before a jury of his country. He did not see why that right should not be secured to every person without interfering with the privileges of that House. He thought the doctrine laid down by Lord Chief Justice Denman was correct, but he could not help saying the resolutions of the noble Lord seemed to go immeasurably further than the subject required. There was nothing inconsistent in maintaining the privileges of the House and protecting private character. Even the Reform Bill gave the right of action against a revising barrister if he exercised his power improperly. In the case of" Burdett .v Abbott," the decision of the judges and of the House of Lords was against that of the House of Commons. He could not help also entertaining the opinion that the policy of adopting the present resolution would be most dangerous; because the inevitable consequence must be to make these questions 1125 matters of daily controversy. He must humbly contend that there was a question raised by this resolution which never could be upheld; because it made Parliament paramount to the law, and the result would be, that men would not be able to seek redress for injury done to them under its authority. Did the House believe, that in deference to this resolution, the King's judges would yield obedience to it? On the contrary, he believed they would do no such thing. The judges of the land would act in the same spirit as Lord Chief Justice Holt did, and persist in pursuing the same course which he did. In such a case, would the House be prepared to correct the Chief Justice? Such a resolution as the present could only be passed with the people to back it; but the proposition was one which they never would consent to. He did not call upon the House to abandon its privileges; but he did call upon it not to put them forward in a stronger manner than had ever been hitherto clone. What he wished to see was, an end put to these disputes; and he would humbly submit to the House whether it would not be better, without asserting doctrines that would be perilous to the liberties of the people and their privileges, to take a course that shunned either of those results? It was admitted that it was desirable that persons who had been slandered in their reports should have an opportunity of vindicating their characters and of obtaining redress; what he would suggest was, that there should be a declaratory law on the one hand, and an active law on the other—that while parties should not be allowed to file criminal informations, they should be entitled to bring civil actions in defence of their reputations and characters.
§ Mr. Sergeant Wilde
thought the question which they had to decide was whether they should entirely discontinue publishing their reports and minutes of evidence; for if those reports only were published which exposed no abuse and discovered no wrong, the public would gain but a small portion of benefit from the inquiries of Parliament. His hon. and learned Friend (Mr. Pemberton) had altogether shrunk from the real investigation. There was not, looking to the cases which had been quoted in the report, the slightest ground of legal doubt of the privilege claimed and the propriety of the resolutions which had been moved. He would put the question 1126 in this way—was the public entitled or not to the means of becoming acquainted with the results of Parliamentary inquiries, and the proceedings which took place in that House? If not, why had they opened their galleries to the public? The House had practically yielded to the call for publicity, reserving the right, no doubt of excluding strangers, but only when the public interest seemed to require it. To attempt to discuss matters generally with closed doors was quite impossible. To show the extent to which publicity was required and accorded, it was only necessary to recollect to what purpose one of the two galleries of that House was devoted. In the present state of public intelligence and popular feeling, it was impossible for Parliament to legislate either satisfactorily or wisely without from time to time giving publicity to their proceedings. The privilege claimed was quite essential to the protection of the public interest. It was said that the resolutions went far beyond the law of the land, but the law of Parliament was the law of the land, the most important and paramount in authority. Constitutionally and necessarily it overrode every other authority in the country. Parliament, no doubt, was the sole judge of its own privileges; and the courts of law disclaimed all jurisdiction in such matters. But it was asked what if the other House of Parliament should disagree to those resolutions? The case would then be met by conference between the two Houses, and the question would be set at rest. The House had exercised its undoubted right of publishing its reports and proceedings uninterruptedly for two centuries; however criminatory the reports might be, they were never supposed or held to be subjects of criminal proceedings until the case of Mr. Stockdale. And when it was attempted to raise an alarm in the public mind upon the subject, his reply was, that in that, the very first case which had been raised, all that was complained of was found to be true. It had been said, that, a resolution of that House would be of no avail; he, on the contrary, maintained that in every constitutional view that House was for present purposes the Parliament, possessing the entire Parliamentary power as much as if both Houses were united and sitting in the same chamber. This was no new claim of privilege either on the part of the House or public, in a matter where it had the competent means 1127 of forming a judgment; it was absolutely essential to a due discharge of its most sacred functions; it was bound on every legal authority to affirm the resolutions, and could not without the grossest dereliction of duty and abandonment of the public interests allow the slightest doubt for a moment to remain on the question.
§ Mr. Thomas Duncombe
should certainly vote against the resolutions; but in doing so he did not consider that he was at all committed to the amendment proposed by his hon. Friend opposite. In proposing the resolutions he maintained that the House was about to vote to itself a privilege which it had never possessed before. He had read with the greatest pleasure and satisfaction the charge of the Lord Chief Justice of the King's Bench, in which the independence of the bench, and the liberty of the subject were most manfully defended. The noble Lord who presided in the court had been a Member of the un-reformed, and a Member of the reformed Parliament, and was therefore fully aware of the privileges of the House of Commons; if, then, the House should pass the resolutions now proposed, it would amount in effect to a vote of censure upon that individual, while it would be giving to themselves the most despotic, tyrannical, and arbitrary power, that ever was established.
§ Mr. Hume
was surprised to hear his hon. Friend advance such opinions. No man was more opposed to anything despotic and tyrannical than he was; but he would ask his hon. Friend whether it was not the paramount duty of that House to inquire into abuses, of whatever nature they might be, that were brought before it? And if so, he would also ask whether, if in the course of those inquiries evidence should be adduced criminating particular individuals, they were to stop their proceedings, and prevent all further inquiry being prosecuted? For himself he would say that the high and important duties of Parliament could not be carried on if such a doctrine were to prevail. If the rule laid down by his hon. Friend was to be maintained, then they might as well put an end to all their inquiries. At the same time he admitted it was incumbent on the Committees of the House of Commons to take care that nothing was entered in their minutes which was not strictly necessary to elucidate the subject to which their inquiries were directed. Such a precaution would in a great degree prevent any mis- 1128 chief arising from the publication of their reports.
Mr. Sergeant Goulburn
said, that he considered this question one of paramount importance, and on which he found it impossible to give a silent vote. It involved, in effect, nothing less than this fearful issue, viz. whether that House possessed the power by its mere fiat to supersede the law of the land, and shut out the subjects of the realm from the protection heretofore thrown round them by that law? If it possessed that power in cases affecting the private character of individuals, it would follow that it possessed it to an equal extent in cases affecting property, since no man could deny that the right of repelling and refuting slander was a right of equal (frequently of far greater) importance to the subject, than any rights merely involving pecuniary considerations. His learned Friend (Mr. Sergeant Wilde) had talked of the great vigilance and caution with which this right would doubtless be exercised on the part of this House; but he begged to remind his learned Friend, as a proof of what little vigilance or caution was exercised in these matters, that a gross libel on the Chief Justice of the Common Pleas, imputing to that learned and excellent person the grossest personal corruption, had been presented to that House by an hon. Member, was afterwards printed, and was now to be purchased for a most inconsiderable sum. The character of the Chief Justice was so deservedly high as to defy all attacks upon it, but the same might be done with respect to the humblest subject in the realm, and that subject would be denied the right of proving the falsehood of the charges made against him—charges it might be of such a nature as to drive him from society. He would also remind the House of the case of the Committee on the Poole Municipal Election Bill, in which the grossest charges were made against numerous individuals of high character in that town, professing to be grounded on affidavits which were wholly omitted from the published report; and yet according to his learned Friend, these individuals were not to be permitted to challenge their accusers to prove, or themselves to be allowed to disprove, the imputations thus falsely thrown upon them. His learned Friend had disputed the authority of the case of Burdett v. Abbott, because forsooth, it occurred "in an un-re formed House of Commons." But 1129 whence, he would ask, did his learned Friend derive his precedents? Why, from that same source; aye, and in its worst and most corrupt days. The learned Serjeant, in conclusion, called upon the House to pause before it interfered with that supremacy of the law which had hitherto formed the best protection of the subjects of the realm, in whatever station, the humblest as well as the highest, and assumed to itself as one branch of the legislature a power which belonged only to law when enacted by the three estates of the realm.
§ Sir Robert Peel
said, that he should be sorry to come to a decision without shortly expressing the ground on which he should vote in favour of the resolutions proposed by his Majesty's Ministers. The first impression of every man, and particularly of those who had not paid much attention to this subject, would unquestionably be adverse to the principle upon which the Report of the Committee was founded; for it must appear manifestly unjust that any public authority should have the power of authorising the publication and the sale of libels upon the characters of individuals. At the same time, however, he was convinced that upon mature reflection those who had given way to this first impression, would ultimately acquiesce in the absolute necessity, if the House of Commons were to continue in the discharge of its constitutional powers, of maintaining this privilege of publication, and in maintaining for itself the exclusive right of judging of the extent and nature of that privilege, Was it, he would ask, the duty of the House of Commons to institute free inquiries into alleged abuses of public trusts? If that were its duty, if it were one of the public functions of the House to institute those inquiries, what was the limit which was to be placed, or the discretion to be exercised, in conducting those inquiries? Was it not manifest, if the House did not possess a free and unfettered power of compelling the appearance of witnesses and of instituting a free and unfettered inquiry, that their privilege, or their duty rather, as the grand inquest of the nation, must be at once paralysed? But if the House of Commons possessed the power of compelling the attendance of witnesses and of compelling those witnesses to make a disclosure of the truth, ought they not, having so done, and having given publicity to such evi- 1130 dence, to protect those witnesses from the consequences of that disclosure? And as to the publication of the evidence, might not that publication be essential in order to satisfy the public mind with respect to the grounds of their legislation, and to make the constituency of the country aware of the principles upon which their representatives acted? He would say, therefore, that from the dictates of reason, and from what common sense suggested, the House of Commons ought to have the power, subject to no extrinsic control, of exercising their inquiries freely, without being exposed to any legal results. But it was not upon reason and common sense alone that he founded this principle—he founded it upon the uniform practice of Parliament. There was a series of cases showing that for the last 120 years Parliament had been in the practice of instituting these inquiries. It had instituted inquiries with respect to allegations of abuses in the East Indies; with respect to allegations of abuses in the election of Members of Parliament; with respect to allegations of abuses as to the slave trade in the West Indies; and as to the management of the cotton manufactories in this country. The question, then, briefly was, whether the House were to continue in possession of the power of instituting inquiries into alleged abuses or not? If they were to inquire, then did it not of necessity follow that they must have the power to summon and examine witnesses? If, indeed, they were private individuals, they would have no right to publish the truth to which those witnesses might bear testimony; but neither would they have the right to make the inquiries, it was because, as a public body, they had authority to make these inquiries and to submit the result to the public that they were to be privileged. This privilege, it would appear, had been exercised for 120 or 130 years, and during that time Mr. Warren Hastings had been attacked, and many other persons of the highest eminence had been attacked by its exercise, or he ought rather to say would have been at-attacked if the inquiries respecting them had been instituted by an unauthorized body or by individuals. Up to the present time, however, it had been the doctrine that Parliament had the right to institute inquiries of this nature. But on an allegation being made by a Report of a Committee that a Mr. Stockdale had published an obscene pamphlet, an action was brought against an officer of the House of 1131 Commons for that publication. What said the authorities? He would take the authority of Lord Tenterden, who stated, that he doubted whether there existed the privilege to sell a libel. Lord Denmansaid, that if this publication had been written or printed merely for the use of the Members of the House, it would have been a different thing. They had, then, this admission that there was little doubt of the authority of Parliament to institute these inquiries, and that there was also little doubt of their right to print for the use of their own Members a fair statement of that which was disclosed. Now, he would ask for no further concession in favour of the principle for which he was contending, which was, that the House had the power of protecting parties from the consequences of giving evidence which the House had compelled them to give. The only remaining question was, whether there was a legal distinction between printing for the use of Members and the subsequent sale. He imagined that there was not; and if so, the doctrine that the sale of publications printed for the Members subjected the officers who printed them to question by the Court of King's Bench must be abandoned. Had a man a right to give away a libel? He who circulated a libel merely for a mischievous purpose was equally liable to legal question as the individual who sold it for profit. In the eye of the law there was no distinction between publication and sale. But if this were so, how happened it that a different view would have been taken of this case if the publication had been only for the use of the Members. Let them look at the absurd consequence which would result from the adoption of such a principle. It had been the practice, before that of sale commenced, to print more documents than were required for circulation among the Members, and to distribute them freely; but if the principle which had been laid down could be sustained, should the Speaker give a single copy he would be subject to prosecution. Though Members were entitled to their copies, if, having obtained them, they lent them or if they ceased to be Members were they to be subject to legal question? Suppose a Member went to his constituents, and referred to the documents which as a Member he was entitled to use—suppose, in explaining his conduct to his constituents, he found it necessary to advert to some statement in the documents, and that such statement threw severe aspersions on certain proprietors in the West Indies, 1132 was he not to be permitted to state the details of those transactions by which his conduct had been determined? Then, would the newspaper that published a report of his speech be liable? He referred to these things merely to show the absurdity of the distinction between publications for the use of Members and the subsequent sale. It was impossible to maintain such a distinction. If they admitted the right to publish for the use of Members, and the right of the Member to publish in vindication to his constituents of the course he had pursued, then they must allow that there was no legal distinction of such a nature as that which he had described. If it could be shown that this privilege were necessary for the protection of the functions of Members, and that for a long series of years there were precedents for the sale of the papers, he could not conceive on what grounds they could refuse to assert their privilege, because now for the first time it was questioned by Mr. Stockdale. A committee which sat on this case would not even be able to make a report without being liable to question, for they thought it necessary, to enable the House and the country to judge of the matter at issue, to print a copy of the declaration filed in the King's Bench on the 7th of November, 1836, and in the course of that document it was stated that John Joseph Stockdale had published a book of a most disgusting nature, and indecent in the extreme. If the King's Bench could interfere in this way with the privileges of the House, it might as well at once close its doors as a court of inquiry. The hon. Member for Ripon had suggested that the better course might be to trust to a declaratory Bill. The objection to that was, that the House of Lords might not agree to it, and then they would have thrown a doubt upon the extent of their privileges, without having succeeded in obtaining a law to secure them. He admitted that the power claimed by the House was arbitrary, and that therefore it became them to use it with the greatest possible caution and discretion. When he called it arbitrary, he meant that it was an exclusive jurisdiction, admitting no co-ordinate authority; but when he compared the disadvantages likely to arise from the exercise of the power with the inconvenience which must result from the House being deprived of it, he found that there was the strongest reason for the House continuing it in its possession.
conceived the resolution 1133 before the House was too extensive. Although he concurred to a certain extent in all that had fallen from his right hon. Friend, he thought that the resolution should have been so framed as to embrace the case before the House, and that only. It was too much to attempt by such a resolution to sanction the power of that House to publish all and every suggestion that might under every case arise upon evidence given before committees of inquiry upon all questions submitted to them.
§ Mr. Williams Wynn
agreed in most of the abstract propositions of his right hon. Friend, but he thought that the ends of justice for the preservation of private character would be sufficiently answered if the parties who considered themselves libelled were permitted, on petition to come before the House, and attempt to disprove by evidence the charges made derogatory to their character. Such was the tenor of the precedents in all similar cases on the Journals of the House. If an inquiry were to be instituted as to certain alleged criminal acts by a gaoler, and evidence conclusive as to his guilt appeared in the Report of the Committee, would it be tolerated by Parliament that this should be made the ground of an action in a court of law? In his opinion, certainly not. Whenever power was given for the benefit of the public, it would be impossible to guard against some amount of positive evil resulting from its exercise; and the question then was, whether the law of Parliament and the interest of the public should abate in favour of the interests of private individuals. The privilege had existed ever since the reign of Henry 3rd. No one but Chief Justice Holt, and he was opposed in opinion by the eleven other Judges, had attempted to question the principle that the House of Commons was the only competent judge of its privileges. The result of allowing the right to be questioned would be to decide all questions affecting the privileges of the House by an appeal to the House of Lords, and the common privileges would then depend solely on the sufferance of that coordinate branch of the Legislature. He should give his most cordial assent to the resolutions.
§ Mr. Wakley
was anxious to put a question to the Attorney-General. Their great object was to disseminate the proceedings of that House throughout the world. Now, he was anxious to learn whether the privilege they were about to confer was to be restricted to the Officer of that House, or 1134 to be allowed to the public generally; in other words, he desired to be informed whether, under the sanction of that House, individuals would be allowed to republish any petition or report that had been issued from their office. They would restrict and narrow the benefit to a great extent unless authority were given to all to do that which the officer was authorised to do.
§ The first resolution was agreed to.
§ On the second resolution being put,
§ Viscount Howick
said, as some difference of opinion prevailed with regard to this resolution, he thought it might be expedient to alter a portion of the words; the principle he considered unexceptionable. He proposed, then, to make an alteration which, while it would retain all that was necessary, might meet some of the objections urged against the resolution. The amendment he had to suggest was, that they should stop at the word "privileges" at the beginning of the third line; the resolution would then read thus:—"By the law of the privileges of Parliament, this House has the sole and exclusive jurisdiction to determine the degree and extent of its privileges."
thought the omission of the words in question made the resolution less offensive in language, but left it equally objectionable in principle.
§ Mr. Sergeant Wilde
said, that the words proposed to be left out by the noble Lord had been adopted by the House before.
§ The House divided on the original resolution:—Ayes 126; Noes 36: Majority 90.
§ Resolutions agreed to.
|List of the AYES.|
|Aglionby, H. A.||Blackburne, I.|
|Ainsworth, P.||Blake, Martin Jos.|
|Alsager, Capt.||Bolling, Wm.|
|Angerstein, John||Bowring, Dr.|
|Anson, Col.||Bridgeman, H.|
|Attwood, T.||Brocklehurst, J.|
|Baines, E.||Brodie, W. B.|
|Baring, F. T.||Brotherton, J.|
|Beckett, Sir J.||Buller, E.|
|Berkeley, hon. F.||Buller, Sir J. B. Yarde|
|Bernal, R.||Campbell, Sir J.|
|Bewes, T.||Cavendish, hon. G. H.|
|Biddulph, Robert||Chalmers, P.|
|Chichester, A.||Pattison, James|
|Clerk, Sir G., Bart.||Pechell, Captain|
|Collier, John||Peel, rt. hon. Sir R.|
|Collins, W.||Perceval, Col.|
|Crawley, S.||Ponsonby, hon. J.|
|Darlington, Earl of||Price, Sir Robert|
|Divett, E.||Pryme, George|
|Dunbar, George||Pryse, Pryse|
|Elphinstone, H.||Pusey, P.|
|Follet, Sir W.||Rice, rt. hon. T. S.|
|Forster, C. S.||Roche, William|
|Gaskell, Daniel||Ross, Charles|
|Gisborne, T.||Rundle, J.|
|Gordon, Robert||Russel, C.|
|Goring, H. D.||Russell, Lord J.|
|Graham, Sir J.||Ruthven, E.|
|Gully, John||Seymour, Lord|
|Hastie, A.||Spry, Sir S.|
|Hawes, B.||Stanley, E. J.|
|Hay, Sir A. L., Bart.||Stanley, Lord|
|Heathcoat, J.||Stanley, W. O.|
|Hector, C. J.||Steuart, R.|
|Hilsborough, Earl of||Stewart, John|
|Hinde, J. H.||Strickland, Sir G.|
|Hindley, C.||Strutt, C.|
|Holland, E.||Tancred, H. W.|
|Houstoun, G.||Thomas, Colonel|
|Howard, Philip Henry||Thompson, Col.|
|Howick, Viscount||Thornley, T.|
|Hume, J.||Trelawney, Sir W.|
|Hurst, R. H.||Tulk, C. A.|
|James, William||Turner, W.|
|Johnstone, Sir J.||Verney, Sir H., Bart.|
|Lennox, Lord G.||Vigors, N. A.|
|Lennox, Lord A.||Villiers, Charles P.|
|Lister, E. C.||Vivian, J. H.|
|Lushington, Dr. S.||Wakley, T.|
|Lushington, Charles||Wallace, Robert|
|Lynch, A. H.||Warburton, H.|
|Mackenzie, T.||Wemyss, Capt.|
|Macleod, R.||Wilde, Sergeant|
|Marshall, Wm.||Williams, W.|
|Morpeth, Viscount||Williams, W. A.|
|Mullins, hon. F. W.||Wilson, Henry|
|Murray, right hon. J.||Winnington, H. J.|
|Musgrave, Sir R.||Wood, Charles|
|O'Connell, J.||Wynn, rt. hon. C. W.|
|O'Ferrall, R. M.||Wyse, T.|
|Parker, M. E.||TELLERS|
|Parker, John||Grey, Sir G.|
|Parrott, J.||Rolfe, Sir R.|
|List of the NOES.|
|Balfour, T.||Hayes, Sir E S., Bt.|
|Baring, W. B.||Hogg, James Weir|
|Baring, T.||Hotham, Lord|
|Borthwick, Peter||Jackson, Sergeant|
|Elley, Sir J.||Jervis, John|
|Fector, John Minet||Jones, Wilson|
|Forbes, Wm.||Law, hon. C. E.|
|Gladstone, Wm. E.||Lawson, Andrew|
|Glynne, Sir S. R.||Lincoln, Earl of|
|Goulburn, Sergeant||Marsland, Henry|
|Grimston, Viscount||Nicholl, John|
|Halford, H.||Pemberton, Thomas|
|Hardy, J.||Plumptre, J. P.|
|Price, S.G.||Wason, R.|
|Scarlet, Hon. R.||Williams, Robt.|
|Stormont, Visct.||Young, G. F.|
|Sturt, Henry G.|
|Trevor, hon. A.||Inglis, Sir R. H.|
|Vivian, John Ennis||Duncombe, T.|