§ The Attorney-General
rose to call the attention of the House to a subject closely connected with the privileges of the House, and, as he believed, intimately connected with the best interests of the people of the kingdom at large—a subject which involved the infraction of a principle which, for the last two centuries, had remained unquestioned—a subject in which every Member of the House must feel deeply interested. The House, in the exercise of that which had hitherto been always considered its undoubted privilege, had ordered that certain papers should be communicated to the public with the view, on the one hand, of informing the public mind, and, on the other, of enabling the House effectually to perform its duties. One of the papers so ordered to be published related to the management of the gaol of Newgate, and pointed out various abuses in the management of that institution. Amongst other things, it stated, that the morals of the prison were corrupted by the introduction of obscene publications. The publication of that 1193 statement was made with the view that the abuse might be remedied, and that the House might proceed to pass a measure to protect the morals of persons under confinement in that gaol. A person of the name of Stockdale brought an action against Mr. Hansard, an officer of that House, who was authorised, and indeed directed, by the House to distribute the publication. Upon a petition of Mr. Hansard to that House, stating that such an action had been brought, the House passed a resolution, by which the Attorney-general was directed to appear in the action, and to defend it. In obedience to the instruction which he had received from the House, he (the Attorney-general) did appear in the action, and had defended it to the best of his ability. It now became his duty to state to the House what had been the result of these proceedings. That day the Court of Queen's Bench had pronounced judgment in the case of Stock-dale v. Hansard, and had unanimously decided that the defence had failed, and that the action was maintainable. He most cautiously abstained at that moment from expressing any opinion with respect to that judgment. Coming from so high a quarter, it was to be received with respect and reverence; and he had no hesitation in saying, that each of the learned judges who concurred in it acted most honourably and conscientiously; but, at the same time, it was his duty to inform the House of the extent to which that judgment would go. If carried out, it would go to an extent that would be quite alarming, and that would place the House of Commons in an entirely new position. The Court of Queen's Bench had determined, that the House of Commons had no right to issue such a publication, nor to make such an order as had been made in this instance—that neither House of Parliament had a right to instruct the people, or to convey instruction to them through the medium of such publications; that the right which either House of Parliament claimed of doing so was not a privilege, but an usurpation. But the ground upon which this judgment proceeded rendered it more important and more alarming. Hitherto, in his humble apprehension, the judges of Westminster Hall had considered that the two Houses of Parliament were exclusively the judges of their own privileges. The judges of the Queen's Bench, in the decision of that day, had 1194 repudiated that doctrine, and announced, that they themselves were the judges of all the privileges of Parliament—that the privileges of Parliament might be submitted to their determination, and to the determination of the lowest tribunals in the country; and that finally the judgment pronounced by any of those tribunals might be submitted to the House of Lords; so that according to this decision of the Court of Queen's Bench, all the privileges of the House of Commons might finally come to be determined by the House of Lords. Nay, the Court of Queen's Bench had determined, that even with respect to commitments for contempt, they could examine into the subject matter of the contempt, and declare, whether in their judgment the House of Commons was justified or not in the course it had pursued. The result of this judgment would be, that the House, in the publication of papers, must take care, not only that not more than 658 copies were printed and distributed; but more than that—in the course of his argument upon the case, he (the Attorney-general) had pressed this difficulty upon the consideration of the Court—"If you limit the distribution of such papers to the use of the Members of the House, what is to be done upon a dissolution of Parliament, and what is to be done if Gentlemen cease to be Members of the House, either by the determination of an election committee, or by the acceptance of the Chiltern Hundreds?" He was told by the Court, that neither of these contingencies presented any difficulty at all, because, upon a dissolution of Parliament, or upon a Gentleman ceasing to be a Member of Parliament, all the papers that he had received as a Member of the House, in which there was anything criminatory upon the conduct of others, were immediately to be destroyed—that there was to be a grand conflagration, in which all papers of this description were to be committed to the flames. Thus it followed, that if, after a dissolution of Parliament, any individual who had been a Member of the House should have in his library a paper which he had received as a Member of Parliament, and should venture to read that paper, or to show it to another, he might be subject to an action of libel, or to a criminal prosecution, and be made liable to fine or imprisonment. At the present moment he most cautiously 1195 abstained from entering into the merits of the decision made by the Court of Queen's Bench; but it would be seen, from what he had stated, that it was of the last importance that the House should determine without loss of time upon the course which under the circumstances it should deem it most proper to pursue. When the subject was last brought under the consideration of the House, he was told by the House to appear in the action, and to defend it. He had done so, and had been defeated. He now appeared again to receive the instructions of the House, and as the servant of the House he should punctually and faithfully observe whatever directions he might receive. Whether the House would take strong measures for resisting the judgment of the Queen's Bench was, of course, a matter that remained entirely in the breast of the House itself. But after the statement he had made, it became his duty, as a Member of that House himself, to point out the course which he would recommend the House to adopt. It appeared to him, then, that it would be most advisable to appoint a committee to inquire into the proceedings in the action of Stockdale v. Hansard, and to give an opinion to the House as to the course which the House should follow; and if that should accord with the pleasure of the House, he would propose, that the Members who constituted the former Committee, and who still continued to be Members of the House, should be re-appointed upon the present Committee, with such additions as the House in its wisdom should deem fit. If he might venture so far, he would propose, in addition to the names which stood upon the former Committee, the names of the Solicitor-general, Sir E. Sugden, Mr. Goulburn, Mr. Pemberton, Dr. Lushington, Mr. Warburton, Mr. Bernal, Mr. Easthope, the Solicitor-general for Ireland, and the Lord Advocate of Scotland. This was no party matter. He recollected, with admiration, the manner in which, on a former occasion, the right hon. Baronet, the Member for Tamworth, vindicated the rights and privileges of that House. In doing so, the right hon. Baronet entitled himself to the gratitude, not only of the House, but of the whole community of the United Kingdom. He repeated, that this was not a party matter; and if to the names he had already mentioned there were any 1196 others that it might be thought proper to add, he should most cheerfully acquiesce in any proposition to that effect. It was also his intention to move for a copy of the record in the action of Stockdale v. Hansard, and for a copy of the short-hand writer's notes. It appeared to him, that it would be impossible for the House to come to a satisfactory conclusion upon the subject, until they knew the grounds upon which the judgment of the court had been given. For that reason he deemed it most proper to move for the appointment of a Select Committee, to inquire into the whole proceedings. Supposing his motion to be agreed to, he hoped that, considering the urgency of the case, the Committee would not refuse to meet to-morrow for the sake of arranging the course it should ultimately pursue. He hoped that, in the consideration of this most important subject, there-would be no exhibition of warm feeling—that all would be calm, temperate, and moderate. The hon. and learned Gentleman concluded by moving the appointment of a Select Committee.
§ Mr. Darby
had that day listened with great attention to the judgment of the Court of Queen's Bench, as delivered by Justices Coleridge and Patteson, and confessed, that he had either totally misunderstood those learned judges, or else had fallen into a complete misapprehension of what had been stated by the Attorney-general.—[The Attorney-General: In what respect?] In the first place, he understood the hon. and learned Gentleman to say, that the judges of the Queen's Bench had decided that no papers of that House could be published by order of the House,—["No, no!"] He certainly understood the hon. and learned Gentleman to say so; whilst, on the other hand, he understood the learned judges to say—and they seemed to guard themselves most strictly upon the point—that they did not mean to assert that, by no order of that House, generally speaking, papers might not be published; but certainly, that papers could not be published by the authority of the House which were libelous upon the public. He appealed to the House, whether the hon. and learned Attorney-general had made that distinction. Then, with, regard to commits meats, he certainly understood the learned judges to pronounce their judgment in a sense entirely different from that described by the hon. and learned Attorney-gene- 1197 ral. As he understood the learned judges, they stated, that there were commitments over which the House of Commons had an absolute control; but that, at the same time, there were also commitments which the House might make improperly. Between these two kinds of commitments, the learned judges drew a marked distinction, carefully guarding themselves in the opinions they expressed, and the language they used. But the hon. and learned Attorney-general represented them as dealing with the point in the broadest, most general, and most sweeping manner. He did not profess to have so accurate a knowledge of these matters as the hon. and learned Gentleman; but this he must say, that having heard the statement of the hon. and learned Gentleman in that House, and the judgment of the learned judges as delivered in the Court of Queen's Bench, he certainly should not have recognised one in the other. There were other Members then present in the House who were also present in the court when the judgment was delivered, and he was sure they would be good enough to state, whether their impression of what transpired coincided with his.
§ The Attorney-General
observed, that it was to prevent all possibility of misunderstanding as to what the judges had laid down, that he moved for the appointment of a Select Committee to inquire into the whole of the proceedings. But he was sure that there really was no substantial difference between the opinions expressed by the judges and the statement he had made to the House. For what did the difference alluded to by the hon. Member for Sussex amount to? It was quite clear, that it was unnecessary for the learned judges to say that the House of Commons might publish that which all mankind may publish—namely, matter that was not of a criminatory nature, and which did not affect the character of any individual. Then with regard to the power of commitment, the hon. Gentleman had confirmed his statement, because he said that the learned judges had drawn a distinction between the cases in which the House had power to commit, and the cases in which, as the court asserted, the House had not the power to commit. That was exactly what he (the Attorney-general) had laid down as the doctrine propounded by the learned judges, He maintained, that that doctrine was entirely new; for 1198 from the case of Lord Shaftesbury down to the case of Sir John Hobhouse, there never was an instance in which a court of law said that it could inquire into the causes of commitments made by the Commons, whatever those commitments might be.
§ Sir R. Inglis
had his doubts if the matter in question were such a breach of privilege as to justify the House in proceeding, instanter with respect to it, as the hon. and learned Gentleman proposed. If any difference greater than another existed in the minds of the people of these kingdoms, between them and this House, it was in regard to the extent of the privileges, claimed by this House. No one could doubt what had been the current of public opinion upon this subject two years ago. The House should pause before it committed itself in any other quarrel of a similar character with the legal authorities of the country. On that occasion, he had called on the House to pause; he now called on it to do the same thing; the grounds were in their recollection. If the case were a breach of privilege, then it was certainly entitled to a pre-audience of all other business before the House, and he should bow to the decision. But if it were not—and if he understood the hon. and learned Gentleman correctly it was not, inasmuch as the Judges of the Court of Queen's-Bench had only decided on a question submitted to them by that House—then he did not consider that there was any necessity for the precipitate course proposed by the Attorney-general. The Attorney-general stated distinctly, that the decision of the Court of Queen's Bench would prevent either House of Parliament from publishing matters for the instruction and enlightenment of the people of England. But unless enlightenment and instruction could be conveyed in no other forms of publication than those of libels, he did not see the relevancy of the hon. and learned Gentleman's deduction, as affecting the question at issue. If, as he had said before, the House decided that the question was one of pure privilege, then he should bow to that decision, though he might not acquiesce in it; but if it did not, he should venture to suggest to the hon. and learned Gentleman that, perhaps, it would be better, as it certainly was more formal, to give notice of his motion for the committee. The hon. Ba- 1199 ronet concluded by calling on the Speaker to pronounce on the question as a matter of privilege.
§ Sir E. Knatchbull
concurred in the principal part of the opinions of his hon. Friend, but he deprecated the idea of throwing the onus of pronouncing upon the question of privilege upon the Speaker. He agreed with his hon. Friend, however, that the Attorney-general should give notice of his motion. If the House agreed to the appointment of the committee at once, it would not, in his opinion, display that sound judgment which befitted the circumstance and the occasion, but would rather prove itself hasty and precipitate in its proceedings. If the hon. and learned Gentleman had moved for a copy of the record, and the short-hand writers' notes, confining himself to these alone, he should have had no objection to it; but he could not agree to the motion for a committee.
§ Lord J, Russell
did not think, that either the hon. Baronet, the Member for the University of Oxford, or the right hon. Baronet who had just spoken, had correctly understood the proposition of his hon. and learned Friend. One would certainly suppose, from their arguments (which would be correct enough, if their premises were right), that some immediate decision of the House was called for, and that that decision was to be a decision against some parties for a breach of privilege. No such decision was called for. His hon. and learned Friend, the Attorney-general, felt, however, that it was a matter deeply affecting the privileges of the House, and, therefore, had brought it forward at the earliest and most proper period. No one, he thought, would deny, that it was a question deeply affecting the privileges of the House. The object of his hon. and learned Friend's motion was not to charge any one with a breach of privilege, but merely to ask the House to appoint a committee to inquire into the proceedings by which its privileges were likely to be so deeply affected. Was this a new course of proceeding? By no means. It was a proceeding naturally arising out of the course which the House took upon the former occasion when this subject was under its consideration; and be it remembered, that that was not a precipitate nor a violent course, but a course of great moderation and temper, merely directing the Attorney-general to plead in a case then pending din a court of law. It appeared 1200 that the judges had now pronounced a judgment in that case, and nobody, he imagined, would deny, that that judgment deeply affected the privileges of the House. In point of fact, it affected them so nearly, that there was no doubt (supposing the force and validity of the judgment to be admitted) but that the Speaker, in the discharge of the duties of his office, might do that which to-morrow morning might be called in question, and himself be made subject to an action at law. The votes of the House might contain an accusation, or a sneer, against some individual, in the form of a motion, or a notice of motion—that accusation or sneer might be made the foundation of an action of libel, and the Speaker, as the officer of that House, might be made liable for the consequences. In the natural course of proceedings, the Speaker, by the direction of the House, might have to sign some paper containing a motion of that kind—it would go with the Speaker's name, and, according to an order of the House, might be circulated throughout the country tomorrow morning. Why, some person might immediately proceed against the Speaker, or against the printer, or any other person taking part in the publication, for a libel, in consequence of what had taken place in Parliament that evening. Therefore, he said, that whether the decision of the Court of Queen's Bench were a right decision or a wrong one—whether it were a new decision,—or a decision strictly in accordance with all ancient laws—it was, at all events, a decision upon which the House of Commons should not pause, but should immediately appoint a committee of inquiry. He did not say, whether the statement of his hon. and learned Friend, or the statement of the hon. Gentleman opposite—which was, in fact, very little different from that of his hon. and learned Friend—was the correct and accurate account of what took place in the court of law. All he could say was, that he should support his hon. and learned Friend, in asking for the appointment of a committee.
§ Mr. Williams Wynn
thought, there could be no manner of doubt, that any Member having matters to state, which he thought related materially to privileges of the House, was fully entitled to pre-audience. He thought, too, that nothing could be less precipitate, or less objectionable, than the course proposed in this instance to be pur- 1201 sued by the hon. and learned Attorney-general. The matter was a very urgent one, and it was highly expedient, that the House should lose no time in the consideration of it. What was the position in which the House stood? Look at the events of the last two or three days. A person named Lovibond was reported by a Committee of the House to have been cognizant of an act of forgery: for that act of forgery, the Speaker was directed to reprimand him; and the Speaker accorddingly administered the censure of the House. The whole of those proceedings were entered upon the votes of the House, and had been signed by the Speaker, who had also given directions to the printer to print them. The present Speaker then stood in precisely the same situation as Mr. Speaker Williams in the reign of Charles 2nd. In that case, a person laying before the House an information, accusing the Duke of York of an act of high treason, that information was ordered by the House of Commons to be printed. The Speaker, as the officer of the House, licensed the printer, which was afterwards made the subject of an action against him, in which the plaintiff was successful, and the Speaker was fined. In his opinion, they ought to lose no time whatever in taking proceedings to ascertain what were the real facts of the case, in order that the House might be in a condition to take such steps as might be considered necessary.
§ The Attorney-General
begged to explain. He ought to state, for the information of the House, that the judges of the Court of Queen's Bench were of opinion that the Speaker personally would not be liable to an action, but that the printer and all the officers of the House, acting under the authority of the House, would. The motion he had made rested on this ground, that the Court of Queen's Bench having decided the case in question, and in favour of the plaintiff, it was now indispensably necessary that the House should give directions what course he was to pursue. If the judgment should be entered on the record, a wilt of inquiry would be issued and execution levied, unless a writ of error should be brought; it was, therefore, necessary the House should come to a conclusion what course should be pursued.
§ Sir R. Peel
thought, under the special circumstances of the case, it was indis- 1202 pensably necessary that the House should proceed at once to appoint a Committee. The moment the House of Commons considered anything to affect their privileges, it was their duty to direct their attention to it. He would pronounce no opinion upon the grounds of the decision come to by the Court of Queen's Bench; but he certainly would not lose a moment in instituting an inquiry, first into the facts of the case, in order that they might be presented in a formal shape to the House; and next, as to what it behoved the House to do in support of their privileges. The Court of Queen's Bench could not complain that they were departing from the usual forms in proceeding without giving notice, because notices of motions were not absolutely necessary. Strictly speaking, every Member had a right to bring forward a motion without notice; and if ever there was a case that justified a departure from the usual forms, it was a case in which the privileges of Parliament were concerned. He would not prejudge the case, nor give the Committee power of instituting any proceeding; but the House ought not to lose a moment in considering, with all the deliberation and decorum belonging to the gravity of the case, what course it ought to pursue.
§ Mr. Kelly
did not rise to offer any opposition to the motion of the Attorney-general. He agreed that it was quite enough, immediately it was found, that a decision had taken place affecting the privileges of the House, to justify the House in taking immediate measures upon the subject. He therefore concurred in the proposition for the immediate appointment of a Committee, in order that the proceedings in the late action might be regularly brought under the consideration of the House. But if he thought, with the hon. Member for the University of Oxford, that by acceding to this motion he implied, that any breach of privilege had been committed, either by the Court of Queen's Bench, or by either party in the action, he should unhesitatingly oppose the motion. They ought to have brought under the consideration of the House, not only the proceedings on the action, but the short-hand writer's notes of the judgment delivered by the learned judges. Another reason why he acceded to the motion was, that he felt firmly convinced that the more the judgment of the learned judges was made known to the House 1203 and to the country, the more assured would those learned judges be of meeting with the entire approbation of the people. It was because he felt that the judgment of the court was calculated to preserve the dignity of the House and the liberty of the people that he desired the most extensive publicity to be given to it. He could not sit down without expressing his regret, that while the Attorney-general was proposing to have the proceedings in the action brought before the House, he did not limit himself to stating the grounds of his motion, but should have thought fit to advert to particular parts and portions of the judgment of the learned judges. He would venture to say, that when that very sound, enlightened, and constitutional judgment should come before the House, many of the remarks of his hon. and learned Friend would be found to be wholly incorrect and unfounded. He would venture, with all humility, to assure the right hon. Gentleman whom he was then addressing, that there was no danger of any action being brought against him for any act he might do under the authority of the House, and that no such doctrine had fallen from the learned judges. He would venture to add, that none of the learned judges would be found to have said that it was not competent for the House to instruct and inform the people of this country; and yet, if his ears had not deceived him, he had certainly heard his hon. and learned Friend say this evening, that the judges had decided that it was not competent for the House of Commons to instruct and inform the people. He also understood his noble and learned Friend to have said, that the Court of Queen's Bench had determined, that if any Member of the House, either by a decision of a Committee, or by accepting the Chiltern Hundreds, ceased to be a Member, it would behove him, for the sake of safety, to burn the papers that had been delivered to him under the orders of the House. Now be (Mr. Kelly) would venture to say, that the judgment of the judges would be found to contain nothing to warrant that statement. He was afraid he had occupied too much of the time of the House; but having seen a substantial difference in the description given of the judgment by the Attorney-general, and by the hon. Member for Sussex (Mr. Darby), he felt bound, in common candour to say, having listened attentively to the judgment when 1204 delivered in court to-day, that the statement of the hon. Member for Sussex was the more correct and just account of that judgment.
would not detain the House, as he understood an unanimous vote was about to be given, but he must express his conviction, that if the plaintiff in the action in the Court of Queen's Bench had not been guilty of a breach of privilege, they might as well walk out of the House, and shut the doors, because it would be utterly impossible for them to do the public service. It was quite true the judges had not shut out publication altogether. Every laudatory publication might issue. They might praise all the world, whether they deserved it or not. Praise was never a libel. But it was a libel to tell the truth of a man who deserved to be reprobated. At present, the only control over the judges was a decision of the House of Commons. They were not responsible to the Crown. They could not be removed, except by a vote of that House. Since his time one judge had been removed, on addresses to the Crown, by the two Houses of Parliament. The judge was Sir Jonah Barrington, the vote of the House stating, that he had been peculating with the money of the suitors. According to this decision of the judges, Sir Jonah Barrington might have gone before the Court of Queen's Bench and indicted the officers, or have brought an action against them; and how would the House have acted had the court decided against the parties? Suppose a Jefferies should be restored to-morrow, and be placed in the room of a Denman, how could the House proceed against him, if they did not let the public know the ground of their procedure? It was admitted, that the House might proceed against a corrupt partial judge, but, in order to do so, it was necessary to bring before the public all the facts of the case. But those facts would be so many libels, according to the decision of the judges. It was impossible that the House could tolerate that decision; and his opinion was, that the four judges who had given that decision, ought, tomorrow, to be called to the bar of the House. Yes, that was his deliberate opinion. What he was then saying might possibly be published in the newspapers to-morrow. It was certainly in disparagement of the judges of the Court of Queen's Bench—and they might, if they pleased, 1205 take up the publisher of the newspaper; or, if what he said were inserted in the votes, they might take up the printers of the votes, and send them to gaol for contempt of the Court of Queen's Bench. What remedy would the parties have? None by appeal—for there was no appeal. The judges might confine the parties for any time they pleased for an alleged contempt, and there was no way by which the parties could obtain a legal and judicial reversal of that sentence. The judges were not responsible to any other tribunal than to the House of Commons. But how could they be made responsible, unless they let the public see the grounds on which that responsibility attached? It was a question belonging to the Commons of Great Britain. The Members of that House were the concentration of the people of the country, the judges being appointed by the Crown, while the Crown itself was mater patriœ. This decision was made by the representatives of the Crown against the representatives of Great Britain.
had not purposed to make any observations upon this question, but, after the speech of the hon. and learned Member for Dublin, he felt he should not discharge his duty if he remained entirely silent. Without disputing the regularity of the proceedings taken by his hon. and learned Friend, the Attorney-general, in bringing this subject before the House without any notice whatever, he thought that every. body would agree that it was not convenient, because many of those gentlemen who took, a deep interest in the subject were not only wholly ignorant that the motion would be brought on to-night, but even that the decision had been given, and it was by mere accident, when he was coming down to the House, that he himself had heard that his hon. and learned Friend had made this motion. He believed that there was no one who disputed the propriety of making this inquiry, and the only question between himself and his hon. and learned Friend was, whether the House would be more likely to adopt a course consistent with its own dignity and the interests of the people of this country, by delaying the discussion of this question for a few days, or by proceeding at once precipitately to take that course which his hon. and learned Friend had recommended. Now, if he wanted any proof 1206 of the advantage which would be derived from delay, it would be the temper which had already been exhibited, and he would ask if it were desirable, that upon the mere statement of his hon. and learned Friend, they should at once decide upon taking the step which the hon. and learned Member for Dublin considered as proper, for this reason, that the judges had been guilty of a violation of the privileges of the House, for which, in the opinion of his hon. and learned Member, they ought to be ordered to its bar. Now, what were the facts of the case? If there were any breach of the privileges of the House, it had been committed in consequence of what had been done by the House itself. An action had been brought by a private individual against another private individual. The House of Commons thought proper to declare that this was an attack upon their privileges, although the question of their privileges only came before the Court incidentally. The House could not stop these proceedings; they might commit the plaintiff, they might commit his counsel, or his attorney, but neither the forms of the House, nor the laws of the land, gave them the power of stopping any action brought by one person against another. On the former occasion, his hon. and learned Friend said, that if he attempted to do this, the House must either be defeated, or be driven to subvert the laws of the land. Well, then, what was the consequence? The House of Commons directed the plaintiff's counsel to plead their privilege. His right hon. Friend, the Member for Tamworth, had said on that occasion, that if it should turn out that the law was against them, the House would find the means of vindicating its privileges. He had a great respect for the courage of the noble Lord, and of those who cheered that sentiment, but he believed that no man would dare, or daring would succeed, in what was called vindicating those privileges, which the sworn judges of the land had declared were untenable. If the attempt were made, sure he was that it must fail, Now, let them observe what the state of the case was. The House was called upon to stop this action at its commencement. The House allowed the action to go on, and now, when the judges, having no power of refusing to hear the action, had decided the case, and no man doubted that they had decided it according to 1207 the law of the land, an hon. Member of that House got up in his place, and stated that the four judges ought to be summoned to the bar of the House. The House said, in effect, to the judges, "Decide this case by all means; we submit to your jurisdiction; but mind, you must decide it only one way. Decide it in our favour, and you will commit no breach of privilege, but decide according to your own opinions, and we will drag you to our bar." He would ask if there was ever a doctrine propounded more monstrous and unconstitutional than this? It was not because it was convenient or desirable, or even necessary, that the House should possess the power of publishing evidence, that therefore it should be possessed against the law of the land. The decision which had been given had greatly increased the evil against which they had formerly to contend. They might formerly have had a declaratory law, but such a step was now impossible, after the judges had formally pronounced their decision. Although, however, such a step was now impracticable, they might still have that protection for their privileges which the transaction of business required, simply by taking that course which was just, and which they might adopt without any compromise of their rights, or of their opinions. If they went on in opposing the courts of law, what would be the result? It could not be doubtful that, if the decision of the Court of Queen's Bench was not impeached, the example would be followed, and what would the House do, when they saw plaintiff after plaintiff commencing proceedings of a similar nature? They could not stop such proceedings, even if they had recourse to violence: They had no means of preventing such actions or such decisions, except they were treated as con-tempts of the authority of the House, and there was therefore no effectual mode of preventing such proceedings. The House would not attempt to call the fifteen judges to the bar, or to send them to the prison of their own court. The House would therefore do well to consider the steps which they were about to take, and not to enter into a contest which could only terminate in a manner injurious to the best interests of the country. If they embarked in that contest, when it came to that point where support would be necessary he much doubted whether that House would find the people standing up to de- 1208 fend the course which they were pursuing. One course might be followed, which would lead to no inconvenience, and which would not compromise their privileges, but if they adopted a different course, and opposed the laws of the land and the judges, such a proceeding would not fail to prove injurious to the best interests of the country, and ruinous even to the House itself. He should not oppose the appointment of a committee, although he could not but regret that the present discussion should have taken place. He trusted, however, that the Government would apply itself to the consideration of the subject with calmness, in order to adopt the best way for securing the House in the enjoyment of those privileges which were necessary for the exercise of their legislative functions, but which, at the same time, would lead to nothing injurious to the institutions of the country. If they persisted in hostility to the decisions of the judges, they must necessarily hurt other institutions of the country, which were permanent in their nature, while a Parliament was not permanent. It was not the first time that that House had come into collision with the judges, but on every occasion on which they had done so, the House had been defeated. On more than one occasion, such collisions had taken place; but what had been the result? Why, the contest had been terminated by a dissolution of Parliament, which at once had terminated the dispute, and left the judges in full possession of their authority. Whether the noble Lord contemplated any proceeding of a similar nature in the present instance, he, of course, could not say; but, whatever might be his views, he would entreat the noble Lord to adopt that course which alone could redeem the House from its present state of difficulty, and put an end to a contest which, whatever party might triumph, from the very nature of the contest, would inflict a serious injury upon the people.
§ Sir C. Grey
would cheerfully support the appointment of a committee, but beyond that, he was unwilling to express any positive opinion on the course which it was proposed to pursue. In regard to the second motion which the hon. and learned Gentleman, the Attorney-general, had submitted for the consideration of the House, he wished to say a few words. That motion was, that the notes of the shorthand writer, 1209 containing the decision of the judges, should be laid before the committee which it was proposed to appoint. Now, they had heard two hon. Members opposite express very different opinions from those which the hon. and learned Gentleman the Attorney-general, had expressed, in regard to the terms in which the decision was couched, and he thought, therefore, that the notes of the shorthand writer, however accurate they might be, ought not to be taken as authority. When they considered that the record itself, and the minutes of the judges, in regard to which there could be no sort of doubt, would completely raise the whole question which it was necessary for the committee to investigate, he would ask the House to consider, whether it was desirable to take the decision of the judges, on the authority of the shorthand writer, more particularly in a matter so liable to misconstruction as the words of the judges. He would, therefore, suggest to hon. Members upon both sides of the House, whether the question of privilege would not be brought sufficiently before the committee, by the record and minutes of the judges, and whether it was not prudent to abstain from a course which might involve the House in a fruitless contest about words, which could hardly fail to be the case, if they relied on the notes of the shorthand writer.
§ Sir R. Peel
said, that chiefly in consequence of what had fallen from the hon. and learned Gentleman near him (Mr. Pemberton), he wished particularly to ascertain what the precise objects were for which the committee was to be appointed. He a apprehended, that the committee was not to be required to express any decision whatever. He conceived that the whole matter was open for their investigation; that they were to examine all the important questions which the case suggested, but that they would have no power to decide. The committee would examine fully, and lay before the House, all the important considerations which might arise during the investigation, and it would then be for the House to decide. Whether the House was to acquiesce in the decision, or whether they should determine to resist, or to have the powers and privileges confirmed by a legislative act—all these questions would be settled by the decision of the House, and not the decision of the committee. It was upon these grounds that he had supported the motion for the appointment of 1210 a committee, and he now wished to he informed whether he had formed a correct opinion.
§ The Attorney-General
said, the right hon. Baronet had taken the same view of the duties of the committee as himself. The committee would do nothing but inquire. He could not help saying, considering, that inquiry was the only object in view, that the observations of the hon. and learned Gentleman opposite were out of place, more particularly so, as he had in-tended to put the hon. and learned Gen-man upon the committee. He again repeated, that nothing would be done by the committee but inquire.
§ Sir E. Knatchbull
could not help thinking, that it would have been better if notice had been given of the motion brought forward by the hon. and learned Gentleman, the Attorney-general; but, if the course which had been followed was satisfactory to the House, so let it be. He hoped, however, after what had fallen from those who had heard the decision of the judges, that it would be found, that that decision was expressed in a manner different from what had been represented by the hon. and learned Gentleman the Attorney-general.
§ The motion for the appointment of a committee carried.
§ On the question of nominating the members of it,
§ Sir R. Inglis
rose to submit to the House the impropriety of placing on this committee those hon. Gentlemen whose opinions, they having served on a former and similar committee, were now matters of record. He thought it would not be wise to place the same Gentlemen on the present committee, and although he had not divided the House on the question that a committee be appointed, still he was strongly disposed to take a division upon this point, and on the propriety of producing the notes of the short-hand writer as evidence of the terms in which the decision of the judges had been delivered. If the House insisted on the production of those short-hand notes, he contended that they would be arrogating to them-selves a jurisdiction which had never before been claimed by the House of Commons, and which, he was persuaded, would be alike injurious to the House and to the people. In such a case they would practically be calling the judges of the land to the Bar of the House, and putting them to trial on the evidence of the short-hand 1211 writer—a proceeding which he was fully persuaded was a violation of their rights, and also in direct hostility to the best interests of the people.
thought, that it was duo to the judges and to the House, that the House should fully and clearly understand the precise terms in which the decision of the judges had been delivered.
§ The Attorney-general
believed, from the acknowledged accuracy of Mr. Gurney, that the House might rely on the correctness of the shorthand notes. If, then, such was the case, surely for their own sakes, as well as for the sakes of the judges, they ought to have the exact grounds upon which the decision had been made, and the precise terms in which it was delivered, laid before the committee. When those notes were laid before the House, it would be found, that the statement he had made was fully borne out by the facts.
§ Mr. Blewitt
thought, that it would be more respectful to ask the judges to communicate their decision to the House than to make a motion on the subject.
§ Lord J. Russell
agreed with the hon. and learned Gentleman, that it was desirable to have the notes of the arguments of the Attorney-General laid before the committee, and he believed they would be produced under the form of the motion which had been proposed.
§ Committee appointed.
§ On the question, that the committee have power to send for persons, papers, and records,
§ Sir R. Inglis
asked whether the committee were to have power to send for the judges? Before he consented to this motion, therefore, he should wish to know whether the committee meant to exercise that power? He did not believe, that any person would consent to a motion that the judges of the land should be brought to the Bar of the House; and what the House in its collective capacity could not do, ought not to be given to a body of fifteen or twenty private gentlemen. So that, unless he heard a statement from the Attorney-general and the noble Lord, the leader of her Majesty's Government in that House, that they did not intend to call the judges before the committee, he, for one, should divide the House on the question.
§ Mr. C. Buller
asked, whether the hon. Baronet meant to say, that the judges were not to he called before the House, or even before committees of the House? If he did, the practice had been different. In the Record Committee the judges had been called upon to give their opinions. He could see no difference between the cases. Did the hon. Baronet mean to lay down a rule, that the judges of the land were to be kept so apart from all other persons, that they were not to be called before a committee of the House for their opinions?
§ Sir R. Inglis
only wished to ask his noble Friend and the Attorney-general, whether they intended to call the judges before the committee?
§ Mr. Hume
said, it was a monstrous doctrine to say, that any individual in the country was not amenable to this House. He had seen the Lord Chancellor before a committee of this House; and he had never heard that any individual was exempted, if his presence was necessary for the purposes of justice. Of course, it must rest with the discretion of the committee, but if they thought it necessary, he hoped they would have the judges before them. If necessary, he would be ready to move or to second a motion, on any occasion, to call the judges to the bar of the House.
§ Lord J. Russell
said, that his hon. and learned Friend and himself, in the appointment of this committee, had no view to the examination of the judges on any judicial question; they had no such intention, and his hon. Friend need not suppose they had; at the same time they did not mean to preclude themselves from giving to the committee the power which was usually given by the House.
§ The Attorney-General
said, as far as he was concerned, he felt the most sincere respect and reverence for the judges, and he believed, that the judges of the Queen's Bench had, on this occasion, acted most honestly and conscientiously. But at the same time, that the committee should be fettered by any such contract as that proposed by the hon. Baronet, was a proposition he utterly disclaimed. The Lord Chancellor, as had been stated by the hon. Member for Kilkenny, had attended a committee of this House, and other judges had done the same, without any scruples.
§ Sir E. Knatchbull
observed, that the 1213 Lord Chancellor was a Peer, and attended by his own consent and at his own discretion, so that the case was not in point. If the judges were sent for by the committee on any matter connected with their judicial capacity, he ventured to say, that they would not obey the order.
§ Mr. Wynn
disclaimed the doctrine, that the judges could not be called before this House. Suppose a motion to be laid on the Table of the House, containing a charge of corruption against a judge. It used to be the practice to appoint a committee of corruption for the express purpose of inquiring into the course of justice. It was not likely that there would be any temptation to summon the judges before the committee, and if any individual were to attempt to exercise such privilege the committee would check it. But it would be better to let the discussion drop here.
§ Sir R. Inglis
repeated, that unless there was an understanding, that the committee were not to call the judges before them, he should divide the House.
§ Mr. Sergeant Wilde
observed, that it was necessary the committee should have the judgments of the judges before them, and as they were written judgments, there could be no difficulty in obtaining them. The committee would then have the exact reasons of the judges before them. The judgments would be printed in a few weeks, and circulated amongst the Members; and it would be no disrespect to the judges, but, on the contrary, it would be respectful to them to desire to know what were the reasons they assigned for their decision.
§ Mr. Godson
said, it was not the notes of the judges that were called for, but the shorthand writer's notes, which the committee might call for, if they pleased, without the authority of the House.
§ Sir C. Grey
recommended the hon. Baronet to withdraw his opposition. He had not known when he before spoke, that the judges had delivered their judgments from written papers, which there could be no objection to have printed for the use of the House. He did not recede from his proposition, that the House could not come to any conclusion as to the opinions of the judges which were laid before them on the authority of Mr. Gurney, or any shorthand writer in the world.
§ Motion agreed to.