§ Lord John Russell
Sir, Before any other business, I rise to move that this House do now proceed to the consideration of the petition of Messrs. Hansard.
§ Agreed to.
§ I now move, the noble Lord continued, that the resolutions of this House of the 30th of May 1837, regarding the publication of printed papers, be read.
Resolutions read as follows:—
That the power of publishing such of its
reports, votes, and proceedings, as it shall deem 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 for 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 consequent 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.
I now rise, Sir, pursued the noble Lord, for the purpose of bringing under the consideration of the House the steps which it may be expedient for this House to take, with respect to the notice of action served on Messrs. Hansard by the attorney of an individual, for having printed and published certain proceedings in obedience to the orders of this House. In doing so, I think I may as well state the position in which we now stand, in regard to the power of printing and publishing our proceedings. On a previous occasion, somewhat similar to the present, a select committee was appointed to inquire into precedents as to the manner in which that power had been exercised by the House, and the grounds on which that privilege might be maintained. That committee found, that the power of publishing and printing such of their proceedings as might appear conducive to the public interest was inherent in and necessary for the exercise of the constitutional functions of Parliament; that those privileges had been exercised for a long period of time, and more particularly at the time of the revolution, when, under the sanction of Mr. Speaker Williams, the votes were not only printed and published, but sold, and the sale became so extended during the last century, as to be a matter of profit, the returns exceeding the expense of printing those proceedings. That was very likely to be the case, because the public had not then, as now, the facility of reading the debates in the newspapers of one day that which had occurred in the evening before, but only received their information scantily from time to time in the periodical maga-
zines, and their only authentic information was contained in the votes of the House, authorised to be printed and sold by the House. I only refer to this fact in consequence of erroneous opinions that prevail on this part of the subject. And one of the most erroneous of these, and the most prevalent is, that the practice of selling the votes and proceedings printed by order of the House is a totally new practice, and that it does not rest on the same foundation as the ordinary privileges of the House. I believe, that the truth is quite the contrary, and that the sale of these proceedings was much more common in former times than now. Although the publication and sale of reports of select committees is of a late date, yet the practice of selling the votes of the House was a far more usual practice in former times than in the present day. In consequence of the report of the select committee, the resolutions of which had been read by the clerk at the table, discussions arose in the House, as to the way in which that power was given, and how it should be exercised in the event of its being called in question in a court of law. And it was the opinion of those best acquainted with the practice in such courts, that the more regular manner would be for the House to make appearance in a court of law, should occasion require, and there inform the judge, that the publication by Messrs. Hansard was authorised by the House of Commons, and that the House claimed as an undoubted privilege the publication and sale of their proceedings. It was held out to the House, to induce them to take that course, that it was the regular way of making the courts of law acquainted with their privileges; and, being informed by the Attorney-general that the court would allow, that the answer was a sufficient answer to any action, that the case could not then be proceeded in, and that it was plain, that the parties in such suit could not succeed in obtaining damages, that course was adopted. The result of the action was certainly different from the expectations held out to the House; and the views propounded in the Court of Queen's Bench, however strict law, were undoubtedly of a most extraordinary nature as affecting the powers and privileges of the House of Commons; because the judges held, that the report of an inspector of prisons, in regard to the prison of Newgate, and the nature of the books to be admitted there and read, could not at all affect that House in legislation, and could not have
any effect whatever in respect of any measures which that House might take relative to that prison, and that such publication, therefore, was unjustifiable. I must say, without entering upon the legal question, that the opinion so propounded by the Chief Justice of the Court of Queen's Bench struck me with astonishment, and convinced me more than any thing else, that it would not be acting wisely to entrust the question of deciding on our privileges to a court of law, because the narrow and contracted notions which seem to prevail in the Court of Queen's Bench, if carried to their full extent, would deprive this House of the exercise of the most important and useful of its privileges, and prevent us from communicating to our constituents or the public at large that general information which is necessary for the maintenance of the authority of the House, and for the information of the public in general, who take a deep interest in and are watching our proceedings. A question was then brought under the consideration of the House, whether this opinion, having been given against the privileges of the House, it was necessary to proceed to prevent damages being levied by the inferior officers of justice. On that occasion I was of opinion, and in that opinion I was supported by a small majority of the House who agreed with me, that having allowed this matter to go so far, and having asked for the judgment of the Court of Queen's Bench, that that was not a stage in which we could properly interfere in vindication of our privileges. The House then came to certain resolutions, and resolved to adopt steps on receiving the report of a select committee appointed to inquire into the matter; but I stated at the same time, I think, to the hon. Member for Kilkenny, that there was nothing to prevent the House from interfering to vindicate their privileges, should occasion occur before that report was made. Such a case has now, it seems, actually occurred, as it is stated by Messrs. Hansard, in their petition to the House, that they have received notice by an attorney for a Mr. Polack, that he would proceed against them in an action at law, for printing and publishing the report of a committee. I now consider what that report is which is said to contain libellous matter of action. And I may say also, that it does appear to me, that the case is quite as strong, if not a stronger case than the former one, in which we had to consider the proper manner of proceeding. In the
former case I did not think it quite the strongest that could happen; but in this case the action against Messrs. Hansard is to be brought for printing and publishing minutes of evidence taken in the year 1838, before a select committee of the House of Lords appointed to inquire into the state of the island of New Zealand, and which is represented to contain a false, scandalous, and malicious libel against Mr. Polack's character. I shall not enter into the question at present as to what is contained in that evidence; but will come to the matter which the House had ordered to be printed. The question of New Zealand is one of very great importance; a bill had been introduced upon the subject—it had occupied the attention of Government for more than two years—and was a question that had attracted the consideration of all who were interested in our colonial prosperity. The House, on this subject did not appoint any special investigation of its own, but the House of Lords appointed a select committee to inquire into the present state of the islands of New Zealand, and the expediency of regulating the settlement of British subjects therein. The Lords forming that committee were the Lord President of the Council, the Duke of Richmond, the Duke of Wellington, the Earl of Devon, Lord Hillsborough, Earl of Canarvon, Earl of Wicklow, Earl of Chichester, Earl of Durham, Earl of Ripon, Viscount Gordon, Viscount Canning, the Bishop of London, the Bishop of Lincoln, the Bishop of Hereford, Lord Glenelg, Lord Dacre, Lord Ellenborough, Lord Colchester, Lord Brougham, and Lord Ashburton. That committee were engaged for a considerable time in taking evidence on the state of New Zealand. They made a very short report stating, that on the main point the extension of the colonial possessions of the Crown was a question which belonged to the decision of Government, but that the exertions already made had beneficially effected the advancement of the religious and social condition of the aborigines of New Zealand, and afforded the best hopes of their future civilization. The evidence taken before the committee was printed for the use of the House of Lords, and having been so printed, it can hardly be asserted, that the evidence could be entirely confined to the Members of that House, and it has now been stated by the authority of the judges, that selling is not material. The whole question turns on publication. It is surely an extravagant
assertion to say, that, if strictly confined to their own House, Members might have the use of printed proceedings. I consider that to be an extravagant assertion, and one that is impossible in practice. Whoever went into the house of a Peer would doubtless find upon the table several large books and reports of the proceedings of the House of Lords and Commons, and there could be no doubt that, if any such person wished to obtain information with regard to New Zealand, no noble Peer would withhold from him a copy of the evidence that had been given on that subject. I take it for granted that the Peers whose names I have read to the House reported the evidence to the House of Lords for the purpose of being printed. They did not print evidence wantonly, for the purpose of injuring private individuals; and in the next place I am sure the evidence so printed by them was in fact published by them, and made known by them in the way the law considered publication. The report was then communicated to the House of Commons. I say again, I will not now enter into the question of what might be contained in it, or whether it had any effect on the character of Mr. Polack. It is sufficient for me to say that the House ha received the evidence as taken before a committee of the House of Lords, and printed by their order. But whether justified or not in that proceeding, I think the the resolution of the House to print and publish these proceeding was a sufficient authority to Messrs. Hansard, and that they were fully justified in proceeding to print and publish them. I must say, that the House was not blameable; nor could it be justly accused of having wantonly published matter reflecting on the character of an individual, in publishing the evidence given before the House of Lords, on matters of great public importance. This individual has instructed an attorney to begin an action against the Messrs Hansard. The evidence which is to prove the ground of that action, was taken before a committee of the House of Lords, and printed by them. How comes it, then, that he has passed over the opportunity of commencing proceedings against the House of Lords, and that he waited till the publication was made by the order of this House? But I do not wish to transfer the vindication of our privileges to the House of Lords. I am prepared to say, that having taken on ourselves the order for printing and publishing, it is our duty
also to take such further steps as may be necessary to maintain that order. The question is, how shall we proceed? Shall we again instruct the Attorney-general to appear before the Court of Queen's Bench, and repeat the grounds and reasons on which we ground our claims of privilege. I certainly should object to such a course, because it appears to me, that it would be merely degrading our privileges, and lead to a humiliating result. I think we have done all that is required of us, on the ground of prudence and forbearance. We have taken care to inform the Court of Queen's Bench why we consider it necessary to maintain our claims of privilege, and done every thing in our power to show that we do not wish to enter into a needless collision with another tribunal, acting under the authority of the law. But having done so, it has now become absolutely necessary that the House should take some other course for the effectual vindication of its privileges. The only way is, to begin at once with the first person commencing this proceeding. By a resolution which I am about to propose, notice will be given to all persons not to commence those proceedings, and if they should disobey that notice, and still proceed to follow out the action, in defiance of the resolutions of the House, they would have received, at all events, due notice of the consequences. In this manner I think we may safely protect the Messrs. Hansard against any thing that the commencement of this action may entail upon them. I am aware that in this proceeding we shall be told, as we were formerly told, that attorneys and counsel will willingly submit to be confined, and sent to prison by this House, in the vindication of what they consider the legal rights of the subject, and the authority of the courts of law. I may think, that the entering into that contest is a most irksome and painful task upon the Members of this House; but, for my part, I see no other alternative. I am not aware that there is any course that can be pointed out, which does not involve this contest, for I can only see, on the one hand, a determination to assert our own privileges, to maintain our own constitutional right, whatever may be the resistance offered to the execution of our orders; or, on the other hand, the total degradation of the privileges of the House, and the total abdication of the functions necessary for the well-being of the country. Of all our privileges, this is the least of all intended for the benefit of the Members of
this House. There may be occasions on which it might be argued, that our dignity has been chiefly offended, and in which we might assert our privileges, rather fur the sake of the jealousy of our dignity than for the public welfare. Let me, Sir, observe what will be the consequence of submission on the part of this House in a case of this kind. The consequence must be, if we take the judgment of the Court of Queen's Bench, and yield submission to that judgment, that all papers printed by order of this House must be, as far as possible, strictly confined to the Members of this House; and, that with regard to all our proceedings, whether of deliberation on public affairs, whether upon matters of legislation, or whatever matters they may be, the great and important matters in which, as the representatives of the people, we are engaged—upon all those matters we must keep our proceedings secret, and we must deny to the people any power of judging whether we have acted according to justice, and whether we have consulted the true interests of the people; or whether we have not deviated entirely from justice, and altogether forgotten their true interests. But would the people be satisfied with that state of things? Would they be satisfied with one saying, whether it were with regard to the state of our prisons, or whether it were with regard to our colonies, or any other subject that may come before us. "You shall be made aware of the laws when they are passed; you shall be made aware of the bare votes to which we have come in determining our proceedings; but, as to the grounds of determination—as to all the evidence that has been given to the House of Commons as to all the evidence that has been given before either House of Parliament—with respect to those proceedings, we are precluded by the judgment of the Court of Queen's Bench from giving you any information on the subject." I am quite sure, that if we took this course, admitting that we surrendered no right or privilege, that would, in six weeks, be intolerable to the people at large. They would say, and I think justly, that we were taking advantage of this judgment of the Court of Queen's Bench, to keep secret our proceedings—to keep secret the grounds upon which we went—and they would say, that we were bound to take some means by which our proceedings should be made known to the people. I hold, therefore, Sir, that this is a case in which it is necessary to maintain our privileges, and I see no
mode of preserving them, except by proceeding against the parties. At the same time, Sir, after the course which has been pursued with regard to the late action against the Messrs. Hansard, and especially with this very cautious letter before us of Mr. Shaw, I cannot say that the proceedings which he has already adopted should be visited with the severe displeasure of this House. I think it necessary that we should enter into a resolution, in order that he and the public may be informed that we think it necessary to vindicate our privileges, and that if he shall proceed, it will be necessary, at least I should say so, that he should be summoned to the bar, and committed for a breach of the privileges of this House. But, Sir, having received the warning which I propose to give, I do trust that he, and all parties, will be disposed to act on the understanding that this had been claimed by the House of Commons as a privilege; that they will be farther disposed to yield a ready assent to the orders of this House; and that they will not go further in this proceeding. I will now read the resolution which I mean to propose, which is as follows:—
That Messrs. Hansard, in printing and publishing the report, and the minutes of evidence on the present state of the island of New Zealand, communicated by the house of Lords to this honourable House, on the 7th of August, 1838, acted under the orders of this House; and that to bring, or to assent in bringing any action against them for such publication, is a breach of the privileges of this House.
I shall propose a further resolution if the first is agreed to, instructing Messrs. Hansard, who have asked for instruction on the subject,
That Messrs. Hansard be directed not to answer the letter of Mr. Shaw mentioned in this petition, and not to take any step towards defending the action mentioned in the said letter.
§ The noble Lord moved the first resolution.
§ Sir F. Burdett
could not help feeling the extreme difficulty of the case, but agreed with the noble Lord, that the House ought to possess whatever power was necessary for the proper performance of its functions. The privileges of this House were not intended to be used as powers against other persons, but to shield the House against the exorbitant privileges of the Crown, which might be exercised so as to stop free discussion, and the free agita- 1083 tion of Parliament. The House, however, claimed privileges now which were not beneficial to the public. It could never have been in contemplation, that Members should be protected against arrest for private debt. But the object of Parliament had altered with the change in the state of the country. It used to be a regulation, that no proceedings in the House be reported out of it. This, among other things, had yielded to the alteration in the state of society. There was this difficulty in the way of the House, that when it once interfered, there was no means of knowing when it should stop. He considered the House should have all those powers which were necessary for the welfare of the public, and he should not, therefore, oppose the resolutions, which he thought rational and consistent with the proper respect for the liberty of the subject. Still he feared, that they were the commencement of a great deal of trouble and difficulty.
§ Sir R.H. Inglis
said, he came to a different conclusion, and should oppose the resolutions. He could not help expressing his regret, that the noble Lord standing there, not only as a Minister of the Crown, but as the guardian of the law, should have indulged in the expression which had escaped him in reference to the Supreme Court of Judicature in this country; that he should have stated, at a time when the authority of the Crown and the law required more than ordinary support from those who were themselves in authority, the narrow and contracted views since taken by that court of judicature; and the noble Lord said he would not trust a question of the rights and privileges of that House to such authorities [Cheers!], He must have expressed himself imperfectly, if he understood those cheers, because the point was not, that the noble Lord rested the defence of their privileges upon themselves, and refused to submit to a decision upon them by the Court of Queen's Bench, but that he refused to submit to the decision of that Court, because the authorities there held narrow and contracted views. To that point he wished to call the attention of the House. He was surprised that the noble Lord, holding the high situation he held, should so designate the first tribunal in the country. What were the facts of the case as related to Polack? The House had no real cognizance of the case; but he apprehended that the Court of Queen's Bench had not only decided the 1084 case of Stockdale v. Hansard, but also that of Polack. His information led him to believe that Polack had brought an action against the Times for publishing an extract from the very Report in question, and had recovered damages. Was the House, then, to come forward, and say that the Court of Queen's Bench had given a wrong decision. The noble Lord said, he wondered that Polack had allowed the publication by the House of Lords to pass, and waited to pounce upon that House at the moment when they published the document. But the noble Lord assumed two things; he first assumed that the House of Lords had published the document. Now, the very first witness put into the box would say, that he went to Hansards', and bought the report for 3s. 4d. Could they say so of the Lords' Report? He did not pretend to say what was, or whether there were any difference in point of law, in the selling of the papers, but certainly, in point of proof, there was a very essential difference; for the purchase in Abingdon-street, or in Great Turnstile, was easily proved, compared to the publication by an individual Peer. In point of moral effect, the difference was still greater. It was useless for the House to go on, unless they were prepared to go to the whole extent [cheers.] If they cheered in that way, they had very strong nerves indeed—they must indeed exert their courage, for he fully believed the great body of the country would not go along with them. They had to look, in the first instance, to Mr. Shaw, the attorney. Did they suppose that Charles Shaw would, upon the first proceeding, fall down upon his kness—at once succumb and beg pardon of the House? Suppose he were to do so, were there no more Charles Shaws in the profession? Did they suppose that their thunder would frighten and bring Mr. Polack humbly to their bar as a supplicant for mercy? Under such circumstances Mr. Polack would do what Colonel Fairman had done on a certain occasion, he would take advantage of a fine morning and a steamer for Calais, and then what would become of the orders of that House? The difference between the orders of the House and those of the Court of Queen's Bench was, that that court was a permanent body, while the House of Commons was dependant for its breath on the will of the noble Lord opposite. If that noble Lord's Friends should say to him, we are tired of the Session, and wish to go into the country, it was only for the noble Lord to suggest to her Majesty a prorogation, and 1085 down it would come the next day. Under such circumstances, what would become of the orders of the House, and under what danger would Mr. Polack be placed? There was an old adage in a cookery book of, "first catch your hare, and then dress him," and he thought that might be very well applied in the present instance to the House of Commons. First, catch your Polack; and then consider what you will do with him. But supposing that they imprisoned Mr. Polack for three weeks, which, according to present appearances, was the utmost extent to which they could go—would that deter some attorney or barrister, between the prorogation and the next assembling of the House, from taking up similar cases? He did not know what the state of business in the Queen's Bench was at present; but it might so happen, that in the interval alluded to, a case might be brought forward and decided, and would that House take upon itself to re-argue a case that had already been decided in the Court of Queen's Bench? [Hear! hear!] The hon. and learned Gentleman (the Attorney-General), who cheered, must have great courage if he thought he could, by re-arguing the case, upset the decision that had been come to [The Attorney-General—"No, no."] If he had misrepresented his hon. and learned Friend, it was because he misunderstood his cheer. With a strong conviction of the extreme difficulty, not to say impossibility of maintaining the contest on which they were about to enter, be, for one, would not make himself responsible for the issue. He felt it his duty to move a negative to the resolution. He thought that the arguments that had been urged, two years ago, against engaging in contests of this kind, received sufficient confirmation from the present state of things, and offered very little encouragement to persevere in such a course of claiming the right of printing whatever they pleased. He contended, that from the moment when they permitted their printer to sell papers, they had so completely changed the moral character of the proceeding, that they could no longer hold the doctrine, that what they did was for their own information. They had placed themselves, at once, from that time, in the condition of those who sold papers and books in Paternoster-Row. Having the decision of the Court of Queen's Bench against them, it was too late for them to say that the principle on which that decision rested was wrong, and that they would continue in a course which had been pronounced by the highest tribunal 1086 in the country illegal. He believed that this course, if successful, would be wrong, but he felt almost certain, that it would not be successful, and that they would be defeated, thus adding another triumph to those who were opposed to them. And as he had no wish to derogate from their just authority and influence, although he was afraid he would be left in a very considerable minority, still, feeling that he acted conscientiously, and to the best of his judgment, he thought he should best discharge his duty by opposing the motion of the noble Lord, and taking the sense of the House on it.
§ Sir R. Peel
said, that when the question was last under the consideration of the House, a proposal was made that they should take a course which would be tantamount, if resistance were offered, to committing the sheriff for levying the fine that was inflicted by the Court of Queen's Bench. He opposed that course, thinking upon the whole that, having permitted the Attorney General to appear, and having apparently submitted the question to the decision of the Court of Queen's Bench—and the court having decided against them, and the sheriff, who was a mere ministerial officer, being bound to obey the orders of that court—he thought it would give rise, not only to inconvenience and misconception, but also to injustice, if they inflicted punishment on the merely ministerial officer, after they had, by their own voluntary act, become parties to the proceeding. But he had previously said, that he had heard with regret that authority was given to the Attorney General to appear, and further, that the sole ground on which he consented to forbearance on the part of the House, was on account of the peculiar course they had adopted—on account of their having apparently submitted their privileges to the decision of the Court of Queen's Bench; but he then advised, if the case should again occur, that they should take another course; that they should not allow the Attorney General to appear and apply to the Court of Queen's Bench for judgment, but that they should assume to themselves the vindication of their own privileges; and that was a course which appeared to him to have received the sanction of the Court of Queen's Bench, in the decision it had come to in the case of Stockdale v, Hansard, He there found it laid down by the Lord Chief Justice— 1087The Commons of England are not invested with more of power and dignity by their legislative character, than by that which they bear as the grand inquest of the nation. All the privileges that can be required for the energetic discharge of the duties inherent in that high trust are conceded without a murmur or a doubt.He then asked this question, whether, upon a matter of privilege, an inherent high trust they should permit the Messrs. Hansard to attend before another tribunal, to determine upon this matter of privilege? His hon friend near him (Sir Robert Inglis) said, that there would be some difficulty in this question, since they had only the power to commit to the end of the Session. If that were a fatal objection to the exercise of this power, it was an objection that would apply to all. Their proceedings would be entirely paralysed if, because their duration was not so complete as that of the Court of Queen's Bench, they were never to exercise their powers. They might as well abdicate their functions altogether. What was the argument; that because their powers were not so enlarged, or complete, or permanent, as those of other bodies, that, therefore, they were to determine never to exercise any of those powers. He could not give up the advantage which they possessed in the case of the New Zealand inquiry, because if they were prepared to relinquish their privileges in this case—if they were prepared to permit Messrs. Hansard again to appear before the Court of Queen's Bench, because the case was so strong that it must be determined in their favour—it would be appealed to as a precedent, and it would be said hereafter, "Now, you must submit, because here is a case in which you did submit, and defend the question." It was impossible, he conceived, that they ever could have a case at all corresponding to the present; and if, therefore, they were to abandon their privileges in this case, they must completely and permanently abandon them. What was the case? An inquiry was conducted in the House of Lords. The House of Lords attempted to take a course which was suggested to this House that they ought to take, namely, they should not give the names of the parties examined; and the House of Lords, therefore, excluded the name of Mr. Polack, and contented themselves with giving his initials. They gave his initials 1088 J. S. P.; and they stated that those initials referred to a person who had appeared as a witness before the House of Lords. Now there was no witness who had the initials J. S. P. except Joel Samuel Polack; indeed he was the only witness whose name began with a P.; it was clear, therefore, that Polack was the man referred to. Now the inquiry was instituted, not in order to enable the House of Lords to determine what course they should pursue in some particular case, but to enable Parliament to determine what policy it might be prudent to pursue with respect to the colonization of a great island. The inquiry would be perfectly useless, if the House of Lords were the only parties to know the facts. The evidence would be a perfect mockery, if it were communicated solely to the Members of the House of Lords, and the Members of the House of Commons. The question here involved was, would they encourage emigration or not? If they did not, let those parties who were desirous to emigrate know what the evidence was on the subject, how was it possible that they could attain their object? This was the report of the House of Lords:—That it appears to this Committee, that the extension of the colonial possessions of the Crown is a question of public policy, which belongs to the decision of her Majesty's Government; but that it appears to this Committee that support, in whatever way it may be deemed most expedient to afford it, of the exertions which have already beneficially effected the rapid advancement of the religious and social condition of the aborigines of New Zealand, affords the best present hopes of their future progress in civilization.Two objects were here referred to, the advancement of civilization, and the mode of establishing civilization by promoting emigration. How could they promote that object, except by making known the result of their inquiries? How otherwise could they encourage emigration? How could they say to parties desirous to emigrate, "We are willing to encourage you, but we must withhold all the information we possess; we have large volumes printed containing information, but we are prevented by some rule of law from communicating it to you." The evidence of Polack had a most important bearing on the hopes, and interests, and fortunes of emigrants. He did not know whether Polack volunteered as a witness; he could only say this, that, 1089 Mr. Polack did appear as a witness. He thought the following answer of Polack most important:—How would colonization prevent wars between the natives?—By employing their minds and their bodies; by Europeans settling between them; by Europeans taking up the slaves as farm servants. The slaves of New Zealand are very impertinent; they are given to invention and lies, and those are things which cause more wars between the natives than anything else.Polack also states another circumstance most important, but of no value unless it was published:—Has the native population decreased? he was asked, and he answered,—It has. Do you account for that chiefly by war?—No, I think the principal cause is infanticide. I have seen many women who have destroyed their children either by abortion, or after their birth, putting them into a basket and throwing them into the sea, after pressing the frontal bones of their heads. Why have they done that?—I have had conversation with them upon it. I saw a girl one day, and knowing she was pregnant, I said 'where is the child?' The answer was, 'Gone.' Gone where—where is it gone to?' I killed it,' was the answer, with the greatest apathy,This was a most important statement. A man going to settle in this place would ask what was the character of the natives, what were their feelings respecting land and the tenure of land? And the answers would be of no use whatever, except those who contemplated emigration flow, then, was it possible that they could conduct such an inquiry with any advantage, if the Court of Queen's Bench had a right to restrain them from publishing the evidence to the world. Polack again states this, which appeared to him rather extraordinary, and which it was important for emigrants to be informed of.Do you think any attempt to unite different tribes in one, and to put a stop to their wars, would meet with success?—That never can be done. Oil and water will not amalgamate. They visit one another?—Yes. During those visits they live on good terms?—Yes; they will absolutely fight against their own party in favour of the people they may reside with. Sometimes their superstitions occasion a great many wars; for example, if a pig passes over a cemetery there is a war immediately. Giving up the pig will not renew former amity; there must be war If a man happen to put his pipe at the top of an old rush-house, which no person would live in, war ensues; and enmities arise from the most trifling things possible. They are children on that subject.1090 Now, supposing an emigrant were desirous of going to this colony, would he not be most desirous of knowing the state in which the people were, the way in which they lived; and would he like to be involved in contentions in which he had no particular interest, or to find the prosperity of the colony impeded by the contentions of the natives. But another witness was called, and he was rather surprised at his evidence, for he stated that he knew——in New South Wales; that he should not designate him a respectable man; and that he would not believe him on his oath under any circumstances. Was it important that parties intending to emigrate should or should not know this? What would be the position of the Imperial Parliament if they encouraged parties to emigrate upon testimony of this kind, and withheld the testimony affecting its credit of which they were in possession? He referred to this for the purpose of showing how impossible it was to maintain the distinction, that they should receive this information in their capacity of the grand inquest of the nation, that that information should be confined to themselves, and that it should be burned when they ceased to exist. As to the question of publication and sale, if there was any one point more clear than another it was this, that whatever moral responsibility the sale might impose, yet, in a legal and technical point of view, it made no difference. Sale was no necessary element in a court of law in order to determine the question of publication. He, therefore, did not think that his hon. Friend (Sir R. Inglis) could safely rely upon the distinction between this House and the House of Lords, because the courts of law had distinctly decided that there was no difference whatever. The fact was, that publication by order of the House of Commons made it privileged. What course were they, then, to follow? The privilege of publication would be of no avail whatever, unless it was one by which the community would be served. He did not say, that in every case they were to give cognizance of their papers to the community at large, but there might be cases in which it was absolutely necessary that the community at large should have all the information they could give; and the only point was, whether they were to exercise their discretion in determining whether the case was fit for publication or 1091 not? If they permitted this to be determined and decided upon by any other body, they became an inferior authority in the State. He did not contend for unrestricted publication of everything; all he contended for was, that of all such information as they were in possession of, which they thought ought to be communicated to the public generally, they only should determine upon the policy of that publication; and when they had determined to make such publication, no extrinsic authority should exercise jurisdiction over their acts. The immediate question was, what the House should do? Ought they to instruct Mr. Hansard to plead to the action? If so, they had the decision of the Court of Queen's Bench already against them. Ought they to admit that the House had been wrong? In that case they must abandon altogether and for ever the right of publishing their proceedings. The course proposed by the noble Lord appeared to him to be one tempered with great moderation, by not proceeding directly upon the resolution of 1837, but again giving notice to the world of its existence. Having once tried the case in a court of law, hoping to have a decision in favour of the privileges of the House, and having been disappointed, they now intended to be the judge of their own authority, and to punish those who would attempt to interfere with it. There might be a case in which the authority of the House might still be resisted; but the public would now generally become convinced, that these privileges were not exercised for the personal gratification of the Members of this House, but they were intrinsically interwoven with their public functions, and absolutely essential to the discharge of them. The noble Lord proposed to proceed in a manner which should subject to punishment, as for high contempt, any one presuming to dispute these privileges. The judges had admitted that this House was in the possession of every power for the vindication of its privileges and the due exercise of its functions; and that if it were to commit a person for contempt of those privileges, no court would take cognizance to relieve the party. He would read the opinion of a high judicial authority, who said, that "in case of committals for contempt, no doubt the House of Commons was the sole judge of the cause, and that no court of law could inquire into it." He (Sir R. Peel), there- 1092 fore, had been from the first of opinion, that the most proper mode for the House to have proceeded in was, to interpose its authority at once on the first symptom of the contempt; but, as a different course had been adopted in the earlier stages of the case of Stockdale v. Hansard, he had not thought it advisable to interfere, after once having submitted as it were to the authority of the court; but now, having once gone before the Court of Queen's Bench, but without success, he did not think that any one would say that in the present case they would be proceeding with undue arrogance, or without due and sufficient cause, if they gave a distinct notice, that whoever attempted now to dispute this privilege should be punished as for a high contempt. He thought that in so doing they would have the public with them; and even if they had not, they would have the satisfaction of knowing that they had done their duty, and had endeavoured to preserve the privileges that were vested in them for the benefit of the people of England.
said, that concurring, as he did, in all the sentiments of the right hon. Baronet who had just sat down, there were a few points upon which he wished to address a very few words on the subject of the present debate. The hon. Baronet, the Member for the University of Oxford, had stated the difficulties which were in the way of one course of proceeding; but he had entirely overlooked those which stood in the way of the other. What would be the inevitable consequence of the House's stopping short of the course it had adopted, and abstaining from asserting its privileges in the present case? What would they do then? No one, he was sure, would now advise that they should revert to the same proceeding that they had adopted in the case of Stockdale v. Hansard, and plead before the Court of Queen's Bench. They had already tried the Court of Queen's Bench, and had been defeated there. Suppose, then, that they were not to adopt the resolution of the noble Lord, would nothing take place? Yes, the action would go undefended—it would go by default—and in due course of time a jury would be empanelled to assess damages for the plaintiff. At this stage of proceeding, as at the previous, there would not be the slightest show of defence, and the consequence would be, that thousands 1093 of pounds might be awarded against Hansard. Or, suppose that Messrs. Hansard should defend the action and plead a justification—what would become necessary to support that plea? They would have to send to New Zealand for evidence in support of the plea, and for want of that evidence the plea would fail, and the result would be a verdict against the defendants, very probably with aggravated damages. So much for an action for damages. But Messrs. Hansard might be indicted the very next day, in which form of proceeding truth would be no defence; and they might be afterwards called up for judgment. Would this case be a single instance of such vexatious proceedings? On the contrary, would not any one who thought he had experienced a real or an imaginary grievance, and who wished to obtain a disgraceful notoriety, bring action after action against their printer. Nay, more; they might even bring actions against every individual Member who had distributed a single copy of the alleged libel. Would the hon. Member for Oxford University have them abandon the sale of their printed documents? Even so, still they would be no better off than they were before. Was not every Member of the House continually asked for copies of their reports by persons interested in their details? This very New Zealand report, for instance, and the Prisons report were eagerly sought for; yet in giving copies they were individually open to actions. Would the hon. Baronet appoint a committee to superintend and edit their publications, in order to strike out from all the voluminous reports which they were daily publishing every particle of matter that could by possibility be construed into a libel? What committee, he should wish to know, would undertake a task of such endless and hopeless drudgery. But even suppose they had published an expurgated edition of the very report now in question, what would be the result? Why, that they had taken out the most important fact and feature in the whole document, the testimony of a witness which went wholly to destroy the effect of Mr. Polack's previous statements. The privileges of the House depended upon their conduct on this occasion—if they abandoned them now, they must relinquish them for ever. This was a privilege, however, which was not to be looked upon in the same light as some of the other privi- 1094 leges of the House, which more concerned the personal immunities of Members, as the freedom from arrest, and some of which had gone far to bring all parliamentary privileges into contempt—as it was a privilege of the most important and essential kind, in defence of which, from a strong sense of their public duty, they were prepared to battle through a most painful and difficult encounter with one of the highest judicical authorities in the land. If they abandon their high and important privilege, they would give up that most useful power of distributing from one end of the country to the other the varied mass of information most affecting the interests of all classes of society, collected by the diligence of the House, and the due dissemination and understanding of which by the people at large was necessary before they could legislate with advantage to the whole body of the people. The noble Lord said, that this was not a time when high judicial functions should be held in contempt. He agreed that there was no time when high judicial officers should be treated with disrespect; but he did not think that the noble Lord, in what he had said, had asserted one particle more than was necessary under the circumstances. The noble Lord said—and said, as he thought, truly—that the Court of Queen's Bench had taken a narrow and contracted view of this important question. He must say that it seemed to him that, of the judges who had delivered this judgment—for whom, in other respects, he entertained the highest respect—that their minds had experienced a most extraordinary contraction when coming to the consideration of this case, perhaps because they were in the atmosphere of a court of law, instead of being in this House, where some of them had sat, and they had entirely forgotten the high and important functions which this House had to perform. The noble and learned Lord Chief Justice must know that his judgment would not deter the House from the exercise of those functions which it was bound to perform, which the people required that they should perform, and which they were obliged and bound to adhere to. If the House were to burn and destroy its papers at the end of every Sessions, how was it to perform its duties, and how was the country to judge of the manner in which it acquitted itself of the important trust reposed in it. Even in regard to precedents, the learned 1095 judge seemed to have relied chiefly upon some which he humbly submitted ought to have been rejected altogether, and neglected others which he maintained were convincing, in support of this privilege As to the question what they should do under the present circumstances, all agreed with the right hon. Baronet who last spoke, that it would be better to take a firm but moderate course to-night, and presume acquiescence to follow. But in this expectation they might be disappointed, and then he was fully aware, that they might become involved in some degree of unpopularity in opposing the Court of Queen's Bench. But he (Dr. Lushington) for one had adopted the line of conduct which he thought right, and he was resolved to go on in it to the end, and he was quite ready to meet any share of unpopularity which might fall to his lot in so doing. He thought, that they could not, in the present stage of the case, take any proceedings against Mr. Shaw, because he had not as yet taken out any proceedings against Messrs. Hansard. All he had done yet was to threaten an action. But the moment Mr. Shaw—if he should be so ill-advised—should bring that action, he would suggest, that the House should proceed against him and every other person, be he who he might, who should be concerned with him in it. They must now show, that they had the courage and the power to proceed against every one who disputed or interrupted the measures of the House of Commons. To stand still under existing circumstances would be disgraceful, and irretrievably destroy the character of the House. It was possible that they might have to go to great lengths against solicitor upon solicitor, and counsel upon counsel; they might have to go further even than this, though he sincerely hoped this would never be the case; yet they might have to proceed even against the judges themselves. Deeply should he regret any occurrence which should render this state of things necessary; but he had not forgotten, when he first took up his position in it, the difficulties of this important question, and the extremities to which they might have to go in it. It had been said, that they could only commit till the end of the Session, and that during the recess a party might bring an action, and recover damages. What were they to do then?—inquired the hon. Member for 1096 Oxford University. Should they re-argue the case? Certainly not, but proceed to punish the parties; and he hoped it would be distinctly understood by all the country that the House would visit, as an equal violation of its privileges, an action brought in defiance of them during a recess as whilst the House was actually sitting; and that upon re-assembling it would be prepared to maintain their privileges, and punish the violation of them. In conclusion, therefore, he would implore the House, for the sake of the nation at large, whose liberties they held in their protection, to be firm in the maintenance of this important privilege.
§ Mr. Freshfield
should feel great difficulty in voting against the observations of the noble Lord, because he thought it right and important, that the House should have a certain power of publication as far as might be essential to the due performance of its functions. He could see no material distinction between this or giving away their publications. He did not think, however, that to treat this in the state in which it now stood, as a question of privileges, would be a safe course; and he would suggest, that the proper course would be to introduce a bill, not a declaratory which bill, the House of Lords might object to, but an enactive bill, confining and establishing this privilege in the House of Commons. This, he thought, was the only way in which the House could establish the privileged nature of their papers as related to their republication, after they quitted the hands of their printer, amongst the community at large.
did not think, that the hon. Member who had just sat down could entertain any very serious idea, that this House would ever submit to bring in a bill to assert a privilege which it had already declared to belong to it. This, indeed, would be putting their privileges in jeopardy without any sort of reason; and as to the power which the House now had of asserting its privileges, it was the same with respect to this as to every other privilege. He admitted, that the virtue of their commitment ended at the prorogation; but in a case of open and contumacious resistance to the authority of this House, could not, he would ask, could not the Government recommend her Majesty not to prorogue the Parliament, but to allow it to adjourn from time to time in order to 1097 give force and continuance to its authority? He was loth to differ in any one point upon this subject with the right hon. Baronet, the Member for Tamworth, agreeing as he did so entirely in the general sentiments he had expressed on it. The right hon. Baronet had made two speeches on this topic so convincing and powerful, and had taken upon himself so entirely his full share of any unpopularity which might result from it, that he did not like to comment upon anything which had fallen from him. But at the same time he thought he should be guilty of cowardice if he took the step to-night recommended by the noble Lord. In his opinion, Mr. Shaw had already been guilty of a breach of privilege. He had not sent a writ to Messrs. Hansard, it was true, but he had taken a course which was very usually taken in reference to parties who were known, and of whom there was no fear they would run away, namely, written a letter requiring the name of their attorney, which every one knew was a more courteous but equally effectual way of bringing an action. If he wanted a case which was strong for their privileges, he did not think he could ever find one stronger than the case now before them; and if they let it pass, it was an argument, a fortiori of submission. He intended, therefore, to move, in case the resolution of the noble Lord should be carried, that Mr. Shaw had been guilty of a breach of privilege in writing the letter in question to Messrs. Hansard, and that Mr. Polack had also been guilty of a breach of privilege in employing him to do so—for he supposed that Mr. Shaw did not write that letter without the authority of Mr. Polack, whereby he would have rendered himself liable to be struck off the rolls. Now, with respect to the merits of this case; he believed that the judgment of the Court of Queen's Bench upon the case of Stockdale, v. Hansard, had been condemned by every dispassionate member of the profession, and had met with general disapprobation on the part of the public. He did not think that a more able and convincing argument had ever been delivered on any subject than that of the Attorney-General. Who could read this argument and the subsequent judgment of the court, and not at once perceive that the judges had not met one single point in the learned Gentleman's argument. Pent; that, in fact, the whole proceeding 1098 was a mere tissue of equivocation, if not savouring of something of a grosser kind. When these judges spoke as they did about the Court of Parliament, were they aware, that if a judge gave a corrupt judgment, it would be the duty of this House to inquire into the matter, and, should it think proper, to impeach that judge? Why, since he had been in the House, an inquiry had taken place into the conduct of a high judicial functionary in Ireland, namely, Sir Johan Barrington, and the Committee which sat upon his case reported, that he had been guilty of corrupt practices, in applying the money of suitors to his own purpose. Now, if they had published the report of that Committee, they might have had an action brought against their printer for so doing. But only let the House reflect how contemptible it would appear if it should address the Crown for the removal of a judge, and yet not be able to publish the evidence upon which it had been induced to take that step? For the due execution of every one of the functions of the House, two things were necessary—first, that they should ascertain facts to their own satisfaction; and, secondly, that they should make them appear to the satisfaction of the people, who were their constituents. They were here not of their own autocratic authority, but as representatives of the people, who were their masters, and to whom they were responsible. But he might be told that House had no right to publish libels. Did the hon. Baronet (Sir R. Inglis) know what a libel was? It was a publication of any kind which in any way disturbed the feelings of any person whatever. It had been decided to be a libel to call Lord Hardwicke "the sheep-feeder from Cambridgeshire," and Lord Redesdale "a stout-built special pleader," though the former was a sheepfeeder, and the latter a stout man and an admirable special pleader. Judge Johnson was convicted of both these libels. He asked, then, how were they to legislate without libeling somebody? There could not be an abuse unless somebody was and abuser. There could not be a grievance unless somebody was an oppressor. They libelled both in the steps which they took to remove the evils of which they were the authors. It was most absurd to attempt to conduct the affairs of the country with out being prepared for this predicament. He should not weaken, by any observation 1099 of his, the powerful and luminous speech of the right hon. Baronet. But he used one expression which rather surprised him. He said it was clear that the House could not be charged with acting in a precipitate manner on this occasion. Now, let us see what they were going to do. Was a mere resolution sufficient in their present circumstances? Why, they had resolved over and over again, and done nothing. In 1837 they had resolved, that they, considering it expedient to publish the votes and proceedings of that House, if any suit or other proceeding were instituted against them by an inferior court, it was a high breach of privilege, and rendered the parties guilty of it amenable to their displeasure, and, as a consequence, to any punishment which they deemed fit. This was their resolution in June, 1837. They were repeating the same thing now in 1839, only in weaker words. He admitted the present proceeding could not be justly called "precipitate," but, by it; were they not shrinking from their resolution of 1837? Again, in the present year, they resolved, first, that publication was an essential incident to their privileges; and, next, that they were determined to act upon this right. Now, however, after all the fever and bustle which they had created, they came to the determination, that it was possible, that at some time or other they might do something. They could not have a better opportunity than the present, and therefore he wanted them to do something now. Here was a letter from an attorney, threatening an action for a libel which they had published against a person who, no doubt, was his client; and he humbly submitted to them, that hesitation in vindicating their privileges now, would encourage others besides this man to ret their resolutions at defiance.
§ Lord J. Russell,
after what the hon. and learned Gentleman had said, felt it right to state to the House a somewhat extraordinary piece of information which had reached him since he last addressed them. The hon. and learned Gentleman had insisted on the necessity of proceeding without delay against the attorney; without any preliminary step, and he had justified this proposal on the ground that Mr. Polack had authorised this individual to take the step which he had. Now, since he had addressed the House, he had received a letter, purporting to be from Mr. Polack (he was not acquainted with his hand- 1100 writing), in which he stated that Mr. C. Shaw had proceeded without his authority and knowledge in this instance; that he had obtained damages from the Times newspaper in an action on this subject; and that his general instruction was not to proceed with any other action. It was evident from this letter that Mr. Polack had this action in contemplation, but that, according to his statement, having obtained a verdict against the Times, he intended not to proceed any further. Now, in the first place, he thought, as this letter seemed authentic, it was a sufficient vindication of the proceeding which he proposed, not at once to commit the attorney to prison, not, as suggested, to punish Mr. Polack on the ground that he must have authorised his agent to take the course which he had done. He thought, he repeated, this letter furnished a sufficient reason for not proceeding more vigorously and severely in the first instance, though it did not at all preclude the necessity of coming to this resolution. Mr. Hansard had stated in his petition, that he had received a letter from Mr. C. Shaw, announcing that he had received instructions to commence an action against him. That statement of Mr. Hansard had come regularly before the House, and a proceeding was proposed to be taken in consequence of the notice which that gentleman had received. They had also received a letter purporting to be from Mr. Polack, but as it had not come in the shape of a petition, which might be supported by evidence, he did not think the House would be justified in noticing the proceeding in that sense. But whatever might be the intention of Messrs. Shaw and Polack, as to proceeding with other actions, as notice had been given to their printer, it was essential that the House should proceed at once to declare their intention on the subject. He thought there could be no better occasion than the present of giving warning to all parties concerned, as to what their proceedings would be, whether or not this action went on, or other actions were instituted by other parties in similar cases. For Ids own part, with regard to the general subject, he did hope that the proceedings which were pointed out by the learned Sergeant (Sergeant Wilde), in what the right hon. Member for the Tower Hamlets had justly described as a most able speech, delivered on a former occasion, would, in case of contest, be found to be a sufficient vindication of that House, and would maintain unimpaired their right of publication, 1101 He did not wish in any way to enter into the question, whether they should or should not proceed against the judges (some hon. Members during that debate affirming that they should, and others advising them not to do so) acting in the courts in execution of their sworn duties. That was a very serious question, should it become necessary at any time to decide it. He did not mean to anticipate what the proceeding of the House would be on such an occasion. No doubt it would be duly weighed. All he was now desirous of was, not to commit himself to an opinion one way or the other, by saying, that in such a case it would be necessary to proceed against them, or by saying, on the other hand, that they should meet with absolute impunity. It would be a most important and serious thing, if ever it came to that pass. He did not think it necessary, in the present state of things, to accede to the view of the hon. and learned Member for Dublin, and to take a step which must excite extraordinary attention and various and discordant opinions.
§ Lord Howick
thought it utterly immaterial whether Mr. Shaw's letter was genuine or not. Mr. Hansard had received what purported to be an intimation that an action would be brought against him. He had brought under their notice that intimation, and he asked for their direction concerning it. This direction was to take no notice of the intimation; and that if any person proceeded to act thereon, the moment he committed any overt act, the House would consider such a proceeding a contempt, and should visit it as such. He conceived it a very great advantage that they should have an opportunity of showing that when a case did arise, they were determined to act upon their privileges. It appeared to him that there was no reasonable doubt as to Mr. Shaw's letter being genuine; for it was evident that it was Mr. Polack's intention to bring an action against their printer, and that he had actually given instructions for so doing, but had altered his mind when he succeeded against the Times newspaper.
§ First resolution agreed to.
§ On the second resolution being put:—the House divided.
§ Ayes 120; Noes 4: Majority 116.
§ Resolution agreed to.
§ We think it enough to give the Noes on the division, which were as follows:—
|List of the NOES.|
|Duncombe, T.||Eliot, Lord|
|Wood, Colonel T.||Inglis, Sir R. H.|