Lord John Russell moved the order of the day, that the Lords' amendments to the Printed Papers Bill be considered. The noble Lord said, that the bill as it then stood, as returned from the House of Lords, contained all the former part of the preamble which it contained when it left the House of Commons. It, therefore, began by stating that
It is essential to the due and effectual exercise and discharge of the functions and duties of Parliament, and to the promotion of wise legislation, that no obstructions or impediments should exist to the publication of such of the reports, papers, votes, or proceedings of either House of Parliament as such House of Parliament may deem fit or necessary to be published.
The bill, therefore, as sent down from the other House, began by the assertion, by both Houses of Parliament, of that great principle, that in order to the due discharge of their legislative functions, they must have the power of publishing such reports of their proceedings as they might see fit. The House of Lords, in the amendments which they had introduced, had not in any degree varied the object of the bill, or the general mode of proceeding; but they had varied it in this respect, that instead of the certificate going from the Speaker of that or the other House of Parliament to the clerk or officer of the court, it should go before the judge in
court; and the bill went on to enact, that thereupon the judge should order proceedings to be stayed. Thus, therefore, the alteration merely was, that instead of the certificate going before an inferior officer, it should go before the judge himself, leaving, however, no discretion to the judge. He thought that any judge, having that act of Parliament before him, would consider that those words were conclusive and binding upon him to put a stop to such action. He had understood that the reason of this amendment was, that it would be thought a proceeding rather derogatory and discourteous to the judges of Westminster-hall to order the certificate to go forth to an inferior officer. He would not suppose that, having the act of Parliament before them, the judges would endeavour, by any captious objections, to defeat that which was the evident object of the Legislature. Therefore, until some case should arise, demonstrating such an intention, he would rather leave the bill as it then was. He thought the mode proposed by the House of Lords was as satisfactory and sufficient as the mode adopted by that House. He should, therefore, propose to agree to the amendments of the House of Lords in that respect. The clause with respect to actions now pending had been left out of the bill; and therefore, in the actions that had been commenced against the sergeant-at-arms, he would plead. His own opinion was, that it would have been well that the action should have been stopped, but he did not think it was necessary to insist upon the clause. The only objection he had to the amendment made by the House of Lords was with respect to the notice; and, without offering any opinion of his own, he would leave it to the House to deal with the amendments in that respect as they thought right. The other clause was with regard to extracts, to which he saw no objection. As that part of the bill with respect to actions now pending had been left out, of course it followed that the preamble referring to those actions had likewise been omitted. Such being the alterations made by the Lords, and, as he understood, several others having been proposed but rejected, he confessed it appeared to him on the whole that the other House of Parliament had been willing to concur in the general principle and in the enactments of the bill, and the Lords had been unwilling lo introduce any thing into the bill that
might lead to any serious difference of opinion between the two Houses of Parliament. He thought the bill would have the effect of maintaining, in an easy and practicable way, the power of publication, for which they had always contended. It was with great satisfaction he found that upon a question of this kind, means could be found of defending the privileges of that House without resorting to those measures, which, however justifiable on the part of the House, in order to maintain those privileges which they thought necessary, were at least exceedingly painful to those who had to insist upon them. Undoubtedly the question as to the attempts of courts of law to interfere with the other privileges of that House was entirely left open; and if he was persuaded that it was clearly the deliberate intention of the courts of law to fritter away, or to dispute, or to undermine, the necessary privileges of that House, he should certainly have some hesitation as to the expediency of agreeing to any act of Parliament on this subject. But he did not believe that any such intention had existed. He believed that the feelings of the judges was, that this was a point that had never been decided; that it was open to them to decide it; and, on their conscientious examination of all the authorities on the subject, they came to an opinion which great legal authorities in that House declared to be contrary to law, and which all the leading Members of the House considered to be contrary to its privileges, and which he believed the great body of the public considered to be inconsistent with the power to communicate information, which the people ought to receive respecting the proceedings of Parliament. He did not believe that decision to be grounded upon any wilful intention of the judges to diminish or destroy the privileges of the House of Commons, but, upon their conscientious opinion, they were doing their duty, as the judges of the land. Believing that to be their real and bona fide intention, he had no apprehensions that the judges would think it their duty oft future occasions to question or dispute the privileges of the House; but if that should prove to be the case, he should be found ready, together with other Members, to maintain all the privileges necessary to the doe performance of the functions of that House. He would be among the first to defend, and he hoped the last to
abandon, the cause of the privileges of the Commons of England. The noble Lord, moved the second reading of the amendments.
§ The Solicitor-General
had attentively considered the amendments, as they were called, which had been made in the bill, and it appeared right to him to call the attention of the House to their effects. He thought it would be inconvenient to again agitate, in that House, a question which had been already decided, that is, the propriety or impropriety of passing the bill as it went up to the House of Lords. But this he would say, that the bill, as it had come back, appeared to him tenfold more objectionable than it was on leaving that House; that every objection that before could be urged had been carried to the extreme, doing that which was professed to be disclaimed. If there had been but one privilege at stake in making that avowal, there might have been some reason in making it; but it appeared to him that such an avowal, under circumstances in which it was made, might lead to great embarrassment, and possibly great difficulty, on future occasions. The wisdom of taking care not by any present step to produce that future embarrassment, he should have thought had been made pretty distinctly apparent. When measures were proposed to be taken in the former cause, it was suggested that those measures would lead to an apprehension that the House intended to submit its privileges to the decision of the courts of law. That intention was distinctly disclaimed, and the proposed course was taken. Contrary, however, to all expectation, the court decided against the privileges of the House. The House then found itself extremely embarrassed by the course that had been taken, and the effect of which had been pointed out at the time it was adopted. That embarrassment had followed the House up to the present moment. He thought, therefore, that the House had had a pretty distinct and severe caution as to the necessity of taking care by no present step, by no attempt to avoid a momentary and temporary difficulty, to lay the foundation for future embarrassments and difficulties in maintaining its privileges. The bill having been brought in after the decision of the Court of Queen's Bench—a decision inconsistent, he would venture to say, with a higher stream of 1031 authority than any to which a judicial bench had ever before opposed itself—the bill being so brought in, and passing the judgment of the court wholly by, without any expression of opinion by Parliament, it was thought by some, and by himself amongst others, that it would be taken to be an acquiescence in the judgment of the court, and that nothing could prevent such an inference being drawn at a future day, whilst, at the same time, the bill did not appear calculated to release the House from the difficulty from which it ought to escape. The bill, however, passed the House of Commons, and was sent up to the House of Lords. It was now returned: and he begged to call the attention of the House to the effect of the amendment, that had been introduced into it as applied to the jurisdiction of the courts of law, which, if once established in cases of that kind, the House of Commons would for ever lose its place in the constitution. The Court of Queen's Bench laid down, not only that the House of Commons had not the privilege of printing, but that the court (and with it all the other courts in the kingdom) had a right to review every privilege which the House of Commons claimed. After such a judgment, it behoved that House to be extremely careful as to how it proceeded. But, independent of the judgment to which he had referred, it was to be remembered that when the sheriffs were brought up upon habeas corpus before the Court of' Queen's Bench, language was used by the judges which, fairly and candidly considered, could not be interpreted otherwise than as bringing into doubt the power of the House to commit—a power which had stood undisputed by any judge for many years past, but which could not now be considered as standing upon the same ground on which it did before these recent transactions. He repeated, therefore, that it behoved the House to be exceedingly cautious how it proceeded. He (the Solicitor-general) was disposed to pay every possible respect to the courts at Westminster-hall. With respect to the Court of Queen's Bench, no man could have received more kindness or greater courtesy from every one of its judges than he had done. For the character and learning of the Lord Chief Justice he had the highest respect and esteem—he had also a personal regard for that noble and learned Lord, which would lead him to be the 1032 last man in the world to do anything that could disparage him. But he was not prepared to compliment the courts of law at the expense of the people of England, nor to the detriment of the authority of Parliament. That matter should be put into a bill to compliment the Court of Queen's Bench, because Parliament thought fit to take measures to stay proceedings in certain actions, was a thing unheard of; that any court in the kingdom should demand a sort of apology from the Legislature, because it thought fit to adopt such a course of proceeding, was also a thing unheard of. Such a principle had never yet been dreamed of; and, although he could not believe that any one had introduced this amendment with the view of offering an affront to the House of Commons, and gaining a triumph over it, he must say, that if such an intention had been entertained, a better mode of effecting it could not have been adopted. What would be the effect of the amendment? In the bill sent up to the House of Lords, proceedings in certain actions were to be stayed—not by the authority of the House of Commons, not by the authority of the House of Lords, but by the authority of the Act of Parliament, upon certain documents being lodged. Was a precedent wanted for such a course? By no means. It had been adopted on repeated occasions when it was found necessary to pass acts of indemnity. In what form had it been done? Why, by declaring that all actions should be discharged and made void by virtue of the act. No judge was asked to interpose to stay the proceedings. No court was called upon to make any order. No notice was required to be given to any of the parties who, it might be admitted, had suffered contrary to law, but who had suffered for the public good. Even in the Revenue Act, as late as the 26th Geo. 3rd, the same thing was done, and also in the Act for arranging the Prince of Wales's debts. Why, then, upon the present occasion, were the courts to be called upon to interfere? Were they to have any discretion? If they were not, and he heard the noble Lord (Lord J. Russell) say," no"—if they were not, for what reason but to affront the House of Commons, could it be asked that they should interfere? He maintained that such an unusual and unnecessary course of proceeding could not in any way be justified. But his main objection to the amendment was 1033 one of a stronger character; The House of Commons had denied (and he ventured to say upon as sound principles of law as could be stated) that the Court of Queen's Bench had any jurisdiction in this matter. Yet by the bill, as it now stood, the House would be appealing to the court to interfere in this very action. The House having denied the jurisdiction of the court on the one hand, and the court, on the other, having solemnly declared that it had a jurisdiction—after exercising that jurisdiction, and going as far as it could to overrule the privileges of the House, the House, by the operation of this bill, as it was now amended, would be compelled, having many precedents to the contrary, to go to the court to ask it to stay proceedings. This was carrying the mischief, which he thought belonged to the bill as it originally stood, infinitely further. He knew of no ground upon which such an amendment could be justified. Great as was his respect for the courts of Westminster-hall, he could not consent to pay them a compliment at the expense of an insult to the House of Commons. He believed that this amendment, if admitted, would lay the foundation for future arguments in support of the jurisdiction of the courts, the effect of which would be extremely mischievous. He objected, therefore, in principle to that amendment. The bill, since it left that House, had been altered in such a manner as to induce him to believe, that it had fallen into the hands of some person not quite familiar with such proceedings. One of the amendments struck him as being of a very extraordinary character. In consequence of the inconvenience which was found from proceedings in causes being limited to the judges of the court in which those proceedings were instituted, an act of Parliament was passed some years ago, allowing the whole of the fifteen judges to act in any causes pending in any of the courts of Westminster-hall. For what reason he could not tell, the present bill was so altered as to compel the parties to go, not to any of the judges of any of the superior courts, but to the judge of the particular court in which the action was brought. What would be the effect of this alteration? Chief Justice Tindal, who presided in the Court of Common Pleas, had been the only judge remaining in town during the recent assizes. An action, therefore, might have been brought 1034 in the Court of Queen's Bench, and judgment might have been obtained before a judge could have been found to stay proceedings; and so, during any long vacation, or between Hilary Term and Easter Term, it would be in the power of any party to bring an action, and to proceed to judgment, unless at least one judge of each of the superior courts remained in town. But observe, this was only in the case of actions brought against the officers of the House, for as applied to all other persons, the law, as it originally stood, remained unchanged. He apprehended, that the exception to the disadvantage of the officers of the House could not be allowed to stand part of the bill, and that the words "or before any judge of the same" must be struck out. His objection to the words was, that they were unnecessary, that they tended to public inconvenience, and might destroy the object of the whole bill. In the next place he objected to the twenty-four hours notice. What necessity was there for such a length of notice? When it was contrasted with the omission of any notice in actions brought against persons not acting under the order of the House, it became the more remarkable. Twenty-four hours' notice were to be given to the plaintiff. But, suppose the plaintiff sued by attorney, how then was the notice to be served? Was it to be personal notice, or was it to be notice at the plaintiff's house? The bill did not declare which. Ambiguities of this kind ought net to exist. Hon. Members who passed bills upon the expectation, that by mere words they could secure an object when there was a disposition against it, were likely to find themselves grievously mistaken. He never found words so distinct and so positive as to enable him to be quite sure that another person would not attribute to them a different meaning. He referred to a case on a former occasion, which his hon. and learned Friend had combated with his usual dexterity, but which he maintained was directly in point. By the act of Parliament relating to contested elections, it was declared, that the Speaker's certificate should operate as a warrant of attorney, and that the court should give judgment accordingly. The words were as positive as words could be. The court was asked to give judgment upon a certificate regularly attested. What did the court do? They said, "As 1035 the court is asked to give effect to this certificate of the Speaker's, we must look to see that it is a certificate warranted by the act of Parliament." The act directed that the certificate of the Speaker should be conclusive, and that the court should give judgment, but the court said, "We are asked to give effect to this certificate; but before we do so we must look to see that it is in conformity with the principles of justice," and they ultimately refused to give judgment. Vet the words of the act requiring them to do so were as distinct as words could be. The court, however, refused to yield obedience to them, and before it gave judgment, insisted on seeing how far the committee had been properly constituted, and because the committee was not properly constituted, it refused to give effect to the mandatory words of the certificate. In the same way fifty reasons might be found to give the court a loophole to escape from the binding effect of the words contained in the present bill. He had no want of confidence in the present judges further than this—that he never would confide to the judges the decision of that which by law they were not entitled to decide. Although he respected the judges as much as any man, yet when he found that they had come to a conclusion in which they declared, that the claim of privilege as set forth by the House was monstrous, a tyranny under which no Englishman ought to live, and when he found, that the claim so designated by the judges was stated by both Houses of Parliament to be absolutely necessary to the due discharge of their functions, he thought that the infirmity of human judgment was such, that giving credit for all integrity of purpose to the judges, it became absolutely essential that the Legislature should adopt some measure which would place its intentions and its views entirely out of doubt. But the constitution of this country was not framed under the supposition that it would be executed by honest judges: it was framed to protect the country against dishonest judges. He did not for one moment intend to include within the meaning of the latter phrase any one of the learned personages who now occupied the judicial bench; but he maintained that for the House to legislate on the principle of confidence in the present judges, and to withdraw from the public any portion of the protection which 1036 consisted in the House having the power to defend and uphold its own principles—inferring that all future judges would be like those who now occupied the bench—was to legislate upon very imperfect, and he thought upon very unwise grounds. It was incumbent upon the House to protect the Commons of England against the possibility of dishonesty—against the possibility of mistake on the part of any of the judges. He hoped that the day when such a possibility might occur would never arrive; but the guards and protections of the constitution were not made for mere parade in fair weather, but to protect the people in troubled times against the power of the Crown, the power of the Lords, and the improper exercise of power on the part of the courts of justice. He thought that the House would be weakening its privileges and sanctioning a jurisdiction in the courts of law that might operate most mischievously if it assented to the amendments made in this bill by the House of Lords. Some of them to which he had not yet referred had excited his surprise. In the first place it was said, "It is monstrous that the House of Commons should have the power of publishing libels; they never can have occasion for it: the power, therefore, is most mischievous, and ought not to be tolerated." Yet he found amendments introduced into the bill not to limit the publications of the House, but to extend them universally. A great difficulty had arisen as to giving a summary remedy to the officers of the House; but no such difficulty arose as to giving a summary remedy to every one else? How was this done? The clause introduced by the Lords upon this point, if the House of Commons should think fit to adopt it, would certainly require some amendment if it was to be of any value, for he had seldom seen one so carelessly drawn. It said:—And be it enacted, that in case of any civil or criminal proceeding hereafter to be commenced or prosecuted, for or on account or in respect of the publication of any copy of such report, paper, votes or proceedings, it shall be lawful for the defendant or defendants, at any stage of the proceedings, to lay before the court or judge such report, paper, or proceedings, and such copy, with an affidavit verifying such report, paper, votes or proceedings, and the correctness of such copy, and the court or judge shall immediately stay such civil or criminal proceedings and the name and every writ or process issued therein, shall 1037 be, and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this act.How was the defendant to do this? The prosecutor possessed the copy—how was the defendant to obtain it? The prosecutor, when he commenced proceedings against the defendant, of course took great care to retain possession of his copy, in order to produce it in evidence in support of his case? How, then, was the defendant to obtain it? What provision was there for him to obtain it? He knew of none. He was at a loss, also, to know what was meant when it was said that the defendant was to produce the report. Was it meant that he was to produce the printed report or the manuscript report? He was called upon to produce something, but there was no intelligible explanation as to what that something was to be. He thought that a defendant would find some difficulty in availing himself of the benefit of a clause so strangely constructed. Then the defendant was to verify, by affidavit, the copy that had been published; but how the defendant was to get the copy and examine it he was at a loss to know. Again, as to the staying of the proceedings, how was that to be effected? Suppose a man were to be indicted at the Surrey assizes for the publication of a report. The assizes were held under a commission, and as soon as the assizes were over the commission was dissolved, and no court remained. He did not believe that any judge of assize would interfere to stay proceedings after the dissolution of the commission; he doubted, indeed, whether, at such a time, the judge would have any jurisdiction at all. It was plain, then, that a defendant could obtain no benefit under this clause, except in places where the sittings of the judge were permanent. He came next to consider how the bill would operate as applied to publications made without the authority of Parliament. When the House published a report, either respecting grievances, or anything else, they were well assured that their officer would publish only in the ordinary way, and without the view of injuring any person mentioned in the report. But if a person obtained a copy of the report, and went into the immediate neighbourhood of a party whose conduct might be impugned, and hawked it about for sale with a loud and noisy proclamation of the particular passages referring to this individual, was 1038 such a person to be justified? By the bill, as it now stood, the House lost all power of stopping the publication of anything it might desire not to become public. As an instance of the inconvenience that might result from this, he might mention that a libel, and a very gross one, against the Chief Justice of the Common Pleas was presented to that House, in the shape of a petition, towards the close of the last session of Parliament. Whether it was published or not he could not undertake to state; but he would venture to say that it never was sold. If it ever had been sold, he had no hesitation in saying, that every one would have regretted it. It was printed by a mere act of inadvertence, during the absence of the Members of the committee on public petitions, and had been a source of great distress to the clerk, by whose oversight it happened to get into type. Chief-Justice Tindal was the very last man against whom even a whisper should be breathed; for a more learned, more just, or more patient man never adorned the bench. He happened to be counsel in the cause to which the petition referred, and, therefore, knew that there was no foundation whatever for the allegations it contained. Under such circumstances, he was satisfied, that if the attention of the House had been called to the petition when printed, it would have taken immediate steps to recal every copy. But by the bill as it now stood, it would possess no such power. He would take the case of an individual not so well known as the learned and excellent Chief-Justice, for the purpose of showing how important it was that the House should retain the power of stopping the publication of papers which it had ordered to be printed. Some time since, the House printed a report upon the subject of New Zealand. To make that report perfect, a map was attached to it. That map, it appeared, had been drawn up by an individual, who immediately complained to the Treasury that his copyright had been invaded. His complaint was entertained, and compensation afforded, but it was necessary that the publication should be stayed, or the injury to this individual would have gone on increasing. It was unnecessary to multiply cases of this kind, in which policy, justice, common sense, required that the publication should be stayed. By the bill, as it now stood, that power would be lost. He came now to 1039 the last amendment, which he held to be very objectionable, although it did not seem capable of effecting much harm. It was in these terms—And be it enacted, that it shall be lawful in any civil or criminal proceeding to be commenced or prosecuted for printing any extract from or abstract of such report, paper, votes or proceedings, to give in evidence, under the general issue such report, paper, votes or proceedings, and to show that such extract or abstract was published bonâ fide and without malice; and if such shall be the opinion of the jury, a verdict of not guilty shall be entered for the defendant or defendants.This was evidently a mistake, because it supposed no prosecution to be commenced except for printing, and then prescribed the act of publication as a justification, supposing it to be bonâ fide, and without malice. To enact that extracts or abstracts might be published all over England, by every bookseller who published them bonâ fide and without malice, appeared to him to be laying the Legislature open to some of those strong remarks about injustice which were so freely and, he thought, so improperly applied to other parts of the case. He apprehended, therefore, that this was a mistake which must be corrected. These, then, were the grounds upon which he objected to the bill as amended by the other House of Parliament. He objected to the first amendment, because it admitted, or tended to admit, the jurisdiction of the courts of law for acts done in obedience to the orders of the House. This, indeed, was his chief objection; and it was one that he thought the House could not too seriously consider. He, therefore, submitted to the House, with respect to these amendments, if the House should be of opinion that the impressions he entertained were well-founded, they would not consent to adopt a bill that would carry the mischief so much further than the original bill would have gone. At the same time he begged to say, that by striking out Mr. Howard's clause, he was satisfied the House would not find itself in any degree relieved from the evil which the bill was originally intended to remedy.
§ The Attorney-General
felt himself bound upon this occasion to express his opinion upon the amendments made by the House of Lords. Although he agreed with some of the criticisms and arguments 1040 used by his hon. and learned Friend, yet he felt bound to say, that upon the whole his opinion was, that these amendments ought to be agreed to. The introduction of the bill was a measure, the necessity of which he could have wished had not existed. He had always been anxious for the House to have maintained its own privileges without legislation. But they were placed in very great difficulties. He had seen many strong objections to the bill, but it had seemed to him, upon the whole, that they would be avoiding greater difficulties and dangers by agreeing to the bill as originally framed, than by persisting in asserting their own inherent powers. He never doubted for a moment the power of the House to exercise the jurisdiction which his hon. and learned Friend had contended for. Both Houses had exercised it for centuries; and it was a power which he hoped they never would part with: for he could easily imagine that a time might come when Parliament might be compelled to proceed to exert that power by commitment against plaintiffs, attornies, attornies' clerks, sheriffs, or any other parties executing the processes of any of the courts of Westminster-hall, or any other court in the kingdom, contrary to the privileges of that House. But the question at present was, whether they ought to agree to these amendments. If these amendments had given any discretionary power to the courts of law, he should have most strenuously resisted them. If he had found in the bill a provision giving the defendant the power of applying to the court to stay proceedings, upon such terms as the court might think fit to impose, he should have considered such a clause an insult to the House of Commons, and should most undoubtedly have contended that the House ought to reject it. Because that would have been putting the House in the situation of humbly going before the court to solicit its interference in their favour; and the court might have said in reply—We have thought fit to stay proceedings on payment of costs, as between attorney and client, and likewise on condition of the defendants making the plaintiff compensation in damages.In fact, it would have been making the Speaker of the House of Commons go to the court and make his bow, and humbly submit to the terms the court might think fit to impose, Again, if he bad found 1041 there was among these amendments a proposal that there should be no sale of the reports and proceedings of that House, he should have opposed it, as a most improper interference with the privileges of the House. The House had resolved that a sale was expedient—that they thought it the best mode of distributing their papers. The result of this had, he believed, been, that though the number of copies had not been multiplied, yet information had been much better communicated to the public than before the right of sale was established; although it ought always to be recollected that there was no novelty in the principle of sale, the practice having subsisted for two centuries. Ever since the Revolution, petitions, even of the most delicate nature—namely, those against private grievances, had always been sold with the votes. But he found, in these amendments, nothing to give to the courts of law a discretionary power. In fact, he found nothing in them to which the House might not agree. His hon. and learned Friend had objected to the certificate of the Speaker being lodged with the judge instead of with the officer of the court, as originally proposed. But that was merely placing the judge in the situation of the officer. The judge, would only have ministerial functions to perform; he would be bound to stay proceedings; and would be liable to be impeached if he refused. It was the act of the Legislature that stayed the proceedings, and not the judges of the court. If there were an action pending in a court of Common Pleas, and the judges were to hesitate about staying proceedings, so completely ministerial were the functions of the judges, that the Court of Queen's Bench might grant a mandamus to compel the Court of Common Pleas to stay proceedings. There was no wish on the part of the House to show any disrespect to the courts of law; nor at the same time did he think that their privileges could be at all endangered by this act. The next objection of his noble and learned Friend was, that twenty-four hours' previous notice was required before the certificate of the Speaker could be made use of. Why, so strongly was it felt that the plaintiff should not be taken by surprise, that by the bill as originally framed it was provided that notice should be given to the plaintiff within forty-eight hours after the delivery of the certificate. 1042 It would be monstrous to say that proceedings should be stayed behind the back, as it were, of the plaintiff. Instead, however, of forty eight hours' notice after the certificate was obtained, the amendment was, that the notice should be given twenty-four hours before. He did not consider this amendment a sufficient reason for refusing his assent to the bill. His hon. and learned Friend regretted (and so did he) that the clause staying the action brought by Mr. Howard had not been allowed to remain part of the bill. But that clause was no essential part of the measure. After the bill had been sent up to the House of Lords, the officers of the House of Commons had been authorised, by a very large majority, to appear and defend the action brought against them by Mr. Howard. This was granted upon the statement by the plaintiff that the action had not been brought to call in question any of the privileges of the House; on the contrary, he admitted the validity of the process of the House; but it was brought in consequence of excess on the part of the officers of the House in staying too long in Mr. Howard's dwelling. It did not appear, therefore, to him, that any of the privileges of the House would be in jeopardy by their agreeing to strike out that clause. His hon. and learned Friend had further complained of the clauses which the Lords had introduced. It certainly did cause him an agreeable surprise at seeing a clause introduced for protecting newspapers and other publications that should re-publish any copy of the reports or other proceedings of the House. He was very glad to see such a clause adopted. He had been afraid that if any such clause had been originally introduced, it would have been a clog to its progress elsewhere, because, if there existed so great a difficulty in getting the sanction of Parliament to a publication of a limited nature, the difficulty would have been greatly increased if the proposition had been made to extend protection to are-publication by all mankind. Here, however, was the clause, and he was not at all sorry for it. He thought his hon. and learned Friend was wrong in thinking that either this clause or any of the preceding clauses would at all compromise the privileges of the House. All that they did was to give a summary mode of proceeding to enforce those privileges which the House had the 1043 inherent right to exercise. The bill admitted the existence of the privilege. The preamble of the bill admitted the right of sale. It stated that it was essential to the due and effectual exercise and discharge of the functions and duties of Parliament that these publications should be dispersed, and that information should be communicated to the public; and that it was necessary that a more speedy protection should be afforded against actions or prosecutions for such publications; thus acknowledging that there already existed a power on the part of the House to stay proceedings, but at the same time saying that it was necessary a more speedy remedy should be provided. That speedy remedy was provided by this bill. It would be effectual when Parliament was sitting. It would relieve the House from a great deal of painful inquiry, and it would be more particularly useful and necessary during the recess. His hon. and learned Friend had also objected that greater advantage was given to parties publishing these reports in newspapers than to the officers of the House. He thought his hon. and learned Friend had not put a proper construction upon that clause of the bill; because the court or judge who was to stay the proceedings was the court, or judge of the court, in which the action was brought. He was not at all alarmed by the notion that the machinery of this bill would be found ineffectual. From the time this bill received the royal assent, he most firmly believed that no action for such a publication ever would be thought of: neither actions nor indictments would be brought. But if there were, even in the case supposed, an indictment preferred at the assizes, the judges in commission remained the judges of that court until the following assizes, and would always be open to an application for staying proceedings. His hon. and learned Friend the Member for Exeter would remember that no longer ago than last term there was an application to the judges of oyer and terminer of York assizes, respecting the non-return of à certiorari, and those judges were unquestionably in commission as the judges of oyer and terminer until the following assizes, as much as Lord Denman, Chief Justice Tindal, or Mr. Justice Pattison, were judges of the Court of Queen's Bench; and application might be made to them to stay proceedings just as much 1044 as any application might be made to any of the judges of the superior courts. He thought he had now answered all the objections of his hon. and learned Friend. He owned that he should have been better pleased if no bill at all had been necessary; and if this House had been unanimous in proceeding propriâ manu. At the same time, as the House had not agreed unanimously to enforce its own privileges, he felt no difficulty in admitting that great good would be effected by the passing of this bill, and he therefore hoped the Lords' amendments would be received. It seemed to him that these amendments evinced, on the part of the House of Lords, a spirit of conciliation and moderation, and a desire to treat the House of Commons with respect; and he thought they would not be displaying the same disposition to conciliate, or evincing on their part a desire to bring about an accommodation of those differences, the existence of which all good citizens must regret, if they were to refuse to allow these amendments to pass.
§ Sir Robert Peel
observed, that if this bill were required to be passed for the purpose of preventing the necessity of resorting to harsh measures, it was necessary that it should be passed at an early period. The House was about to separate, and if they involved themselves in a conference with the Lords upon technical points, the bill might be protracted to a time when all the evils to be prevented might have occurred. He thought it would be much better, in order to effect a great object, to risk some imperfection in the details, than run the chance of becoming embarrassed in a technical argument. If he had found in the bill any provisions inconsistent with the privileges of the House, or that would in any degree be a disparagement to the House to assent to, he for one should have been prepared to have taken his stand in support of the privileges of the House, and should have been ready to go the length of refusing to accept these amendments. But looking at the bill with its amendments, he must say that it manifested a sincere desire on the part of the House of Lords to protect the privileges of the House of Commons. There were no conditions imposed, no enactments introduced inconsistent with the main object that was sought to be carried out. He would not look to any casual expressions that might have been used in the course of the debate, He 1045 knew of nothing except what appeared on the face of the bill, and judging of the intention of the House of Lords by the amendments they had introduced, he must declare, that he saw nothing but a sincere desire on their part to co-operate with the House of Commons in defence of the privileges which the latter asserted. If it were the wish of the House to get rid of the bill, one half of the ingenuity displayed by the Solicitor-general would have been sufficient. He would venture to say, that if one half of that ingenuity had been exercised in the House of Lords, it would have been quite sufficient to have induced the House of Lords not to have passed the bill. Suppose he had urged in the House of Lords, that it was impossible to assent to this bill, because it was a disparagement to the Court of Queen's Bench. By the preamble of the bill the legality of the privilege was admitted, whereas the judges had declared that it was illegal. The necessity of the privilege being admitted, the legality of it was established, and therefore the illegality of the judgment was established. If that had been urged as an argument, it would have afforded a stronger ground for rejecting the bill than any the Solicitor-general had advanced. But the House of Lords permitted the preamble to pass. Both Houses of Parliament had agreed, that the House of Commons possessed the right of free publication, and that it was essential to the due performance of their functions. Finding that this great principle was admitted, he was ready to overlook minor considerations and matters of detail. Those defects were not intentional, nor introduced by way of disparaging the House of Commons. He should therefore advise the House to adopt the bill. He had never evaded declaring his opinion upon this question. He was perfectly convinced, that those who had strenuously opposed the exercise of the privilege, for which he had contended, were acting from conscientious motives. He had acted with them in many instances, but when he thought they were giving bad advice, he did not hesitate to differ from them. And he must say, that, judging now by past experience, he did not regret any portion of the advice he tad given the House. He rejoiced that he bad advised the House to insist upon the possession of this privilege, as absolutely essential to the proper discharge of their functions, He did not regret the House 1046 having exerted its own inherent right. He did not regret the exertion of their power of committal; and he rejoiced, that they had it established, that they possessed the power to commit. He rejoiced, that they had obtained the judgment of the court that they could not question their right of committal. Having that power unquestioned, he did not hesitate to declare, that he thought it proper and right to procure, by legislation, a more speedy and sovereign remedy to enforce it, rather than enter into a conflict that would have led to a total absorption of the time of the House. Their threats of imprisonment, or their actual imprisonment, would not, he was convinced, have been sufficient to deter men—ay, and honourable men too, from contesting with them; for the contest would have been transferred from the Stockdales and persons of his stamp to men of much higher character, who, while they entirely differed from Stockdale, also differed from the House of Commons as to the mode of maintaining and vindicating the privilege of the House. This would have involved them in a contest from which they had not the power to extricate themselves, and therefore he did not regret the advice he had given, that they should try by legislation to secure a more summary power. At the same time he had not advised them to part with any power they already possessed. He trusted they never would part with that. But if they could procure by the assent of the Legislature an acquiescence of the House of Lords in their own views of their privileges, he thought it was wise to make the attempt; and he must say, that the result had justified the attempt. He considered that their privilege would stand upon a better footing after the passing of this bill than it did before; in addition to which they would have a more summary power of asserting it. Whether the judge or the officer of the court should have the power to stay proceedings, he really thought was no objection at all. By the bill as sent up to the House of Lords, it was provided that the certificate should be served upon the officer of the court. It was objected, that it was not right to give power to an officer to do a certain act of which the judge would have no cognizance whatever; that it had an appearance of disrespect to the judges. It was therefore proposed, that instead of a subordinate officer the judge should be compelled to do the act, 1047 he having no discretion whatever. If the judge declined to do it, there was, as the Attorney-general had said, an ulterior power to effect it. But he must say, that where there was an imperative order by act of Parliament for a judge to do a certain act, it was unfair to presume that he would depart from the spirit of the act, and refuse to carry into effect the intention of the legislature. With respect to the other clauses, they related to matters entirely apart from the object of the bill. There was not only an indemnity given to the officers of the House, but to all other persons. He certainly was surprised at this. He had himself been disposed to carry their privileges very far, still he shrunk from proposing so wide a provision. He found, however, the proposal in the amendments, and although he might see some technical objections, yet be, for one, would not enter into any technical discussion, but accept the substance of the amendment, under the strong conviction expressed by the Attorney general, that practically the bill would never be required to be enforced. He might mention, if he were disposed to dwell on technical objections, that while the servants of the House were protected, and the republishers of their reports were protected, a third party, the vendor of the original reports, as printed by order of the House, had no protection. But he confessed, that if they were to attempt to remedy every one of these objections, it would involve the House in a long and tedious conference with the Lords that might be the cause of frustrating the very object of the bill itself. Upon the whole matter, he had only to repeat that the sole object he had in view from the beginning was the maintenance of what he deemed to be an indispensable privilege of the House. In advocating the views he entertained he had not shrunk from the unpopularity that he knew would necessarily attend that course. Some of his friends had condemned him for the warmth with which he had supported those views; others, from whom he often differed, had commended him; but alike indifferent to praise or censure, he had always acted with one sole intention—the maintenance of that power which he judged to be essential for the due discharge of the functions that devolved upon them as one branch of the Legislature. Having acted upon that principle, he found himself perfectly justified by the 1048 course taken by the House of Lords. In his opinion, the House of Lords had shown a spirit of conciliation, and had evinced a wish to do every thing in order to protect this privilege. He did not find in any part of the amendments the least sign of an intention to offer any species of insult to the House of Commons. He, therefore, thought the House would act wisely by accepting these amendments.
§ Mr. Wakley
When the right hon. Baronet rose to address the House, he expected the right hon. Baronet would say, "If you pass this bill, it is my intention to abdicate my seat." [Sir Robert Peel: I always advised the bill.] Not this bill. He had heard the right hon. Gentleman say, some months since, that if he could not maintain the privilege of publication, he would abdicate his seat. Had the House succeeded in maintaining that privilege? What! as a privilege of this House? No: on the contrary, every body knew the reverse. There was not a person of any understanding, discretion, or sagacity, who did not fully understand that the majority of that House was beaten, and wofully beaten on this subject. Had they maintained their privilege? He said, no! And that, as a privilege of the House, it was gone. They had been under the necessity of going to the House of Lords, and beseeching that lordly Assembly to concur with them in passing a law to enable them to make a publication of their proceedings; and this was the miserable figure they were now cutting in the face of the people of England. This privilege being gone—for it was gone—they had abandoned it—was there one privilege that was safe? The privilege of commitment would be next questioned. It would not be deemed sufficient to issue the Speaker's warrant without specifying the grounds of the committal. Thus, in turn, every one of the privileges which the people of England possessed might at last be questioned before the hereditary branch of the Legislature, and in turn every one might be as prostrate as the one now under discussion. The party who had opposed this privilege were the party who had on this occasion driven the majority to ask permission of the House of Lords that they might be allowed to publish their own reports. That which had been deemed by the judges of the land to be a most atrocious tyranny, and an 1049 abandonment of every just and sound principle, was now admitted by those very judges themselves—the chief of them Lord Denman, among the number, to be essential to the due and effectual exercise of the functions of the House of Commons. The two hon. and learned Gentlemen—the Attorney-General and Solicitor-General—had given their opinions freely upon this question. In turn those Gentlemen would both be on the bench. They now differed widely in their opinions. Would their altered position, as judges, change the opinions they now entertained? They were not then arguing as advocates, but they were acting honestly and faithfully as senators on the oaths which they had taken. When they were on the bench they would still act in the same way. Yet the House saw how much they now differed in opinion as to the construction of this Act; and other persons seeing this difference of opinion would, when those persons came to be chief justices (and that they would do according to the usual order), try to obtain different interpretations of the Act. Seeing, then, the nature of the bill—seeing how the House had abandoned the high ground on which it had at first stood—deploring the introduction of the bill, and hoping that it would never become law—if no one else voted against it he certainly would.
could see nothing in the bill in the least degree inconsistent with those doctrines which had been maintained by the noble Lord opposite, and his right hon. Friend, the Member for Tamworth. It did not in the slightest degree interfere with the rights or privileges of the House, as far as those rights and privileges could be insisted upon as such. When this bill should become law, it would still be competent for the House to assert its privileges by every means it was now in its power to resort to. The House would not be debarred by this bill from punishing any individual who might be guilty of contempt towards it, nor could it be urged in opposition to the Speaker's warrant committing a person for contempt, for it expressly provided, that neither directly nor indirectly, expressly or by implication, should it be construed to abridge the privileges of either House of Parliament. It left those privileges precisely where they were, while it afforded an additional, an easier, and a more complete mode—not of asserting 1050 their privileges he could not say, for he was one of those who had not conceded them—but of establishing for both Houses the full enjoyment of the same powers they now possessed, and of adopting a remedy against every obstruction of those powers. He contended, therefore, that it was in no manner inconsistent to call for the interposition of the Legislature to enable the House of Commons to exercise its authority with greater effect. Parliament now granted that protection which that House could give, if at all, only imperfectly. The only difference was this, that they must, according to the first clause, apply to the Court to stop the action. But then it was to be recollected, that every Act of Parliament must be construed by the judges. Somebody, at all events, must construe them, and the whole question now really was, whether the certificate by means of which the action was to be suspended, should be produced to the superior or inferior officer. There was no discretion left by this bill in its present shape to anybody. It merely required that the application, instead of being made to an inferior officer, should be made to a judge. Many hon. Members and noble Lords elsewhere had waived their objections upon the general question, for the purpose of carrying this bill, and it was unfair for the hon. and learned Solicitor-general to assert, that the whole object of those who had produced those new clauses was to make an invidious distinction between the officers of the House of Commons and those persons who were not clothed with the same authority. A more groundless, a more wild notion could not have entered into the mind of a human being. The object of those clauses, he believed to be no other than to give effect to this measure, which the House of Commons itself, and without any previous communication with the House of Lords, proposed. He, however, hoped, that when this bill should have received the royal assent, the noble Lord would give further effect to the spirit upon which it was founded, by liberating those individuals who were now incarcerated for actions which this bill would put an end to.
§ Sir R. Inglis
observed, that like many other hon. Members, he felt he was conceding much in giving his support to this bill, as amended by the House of Lords, and he sincerely hoped that the noble Lord opposite would attend to the suggestion of 1051 his hon. and learned Friend, and relieve those individuals to whom his hon. Friend had just alluded, from the punishment they were so unjustly suffering.
§ Mr. T. Hobhouse
said, that as no answer had been given to the arguments of the hon. and learned Gentleman, the Solicitor-general, he would feel it his duty to support the opposition to the amendments made to the bill. It was a measure that was boasted of as a concession, but the only concession that he could find in it was, that Lord Denman in his judgment admitted that whatever was necessary to enable the House to discharge its duty it had as a privilege, but that the right of publication was not so necessary, and was not possessed by the House, whilst now in the preamble to this bill it was distinctly admitted by both Houses, that the power of publication was necessary and was possessed by the House. This contradiction was all the concession he saw, and as he was at first opposed to the bill, he would still vote against it.
§ Mr. Freshfield
hoped, that when this bill was passed, the House would take more care, and give more consideration to the papers before they were ordered to be printed. The House would surrender no one of its privileges by the passing of this bill; they would only obtain a short mode of redress, rendering unnecessary the assertion of the powers of the House, and without a resort to those means to which they had now had recourse; they were not abandoning their right to have recourse to those means if they should be found desirable. With respect to the second clause, however, he intended to move an amendment, requiring the same twenty-four hours' notice to be given to the plaintiff in an action for copying a publication as was required in an action for the original publication by order of the House.
§ The House divided on the question that the amendment be read a second time: Ayes 68; Noes 28; Majority 40.
|List of the AYES.|
|Acland, Sir T. D.||Brodie, W. B.|
|Archbold, R.||Brotherton, J.|
|Baring, F. T.||Buller, C.|
|Baring, hon. W. B.||Buller, Sir J. Y.|
|Barnard, E. G.||Campbell, Sir J.|
|Bernal, R.||Clay, W.|
|Briscoe, J. I.||Dalmeny, Lord|
|Broadley, H.||Dalrymple, Sir A.|
|Brocklehurst, J.||Darby, G.|
|Duff, J.||Pakington, J. S.|
|Duke, Sir J.||Peel, Sir R.|
|Duncombe, T.||Pemberton, T.|
|Dundas, D.||Pigot, D. R.|
|Ellice, E.||Polhill, F.|
|Ellis, J.||Price, Sir R.|
|Fleetwood, Sir P. H.||Rushbrooke, Col.|
|Freemantle, Sir T.||Russell, Lord J.|
|Freshfield, J. W.||Rutherfurd, A.|
|Gaskell, J. M.||Smith, B.|
|Goulburn, H.||Smith, R. V.|
|Graham, Sir J.||Stewart, J.|
|Greene, T.||Stork, Dr.|
|Grey, Sir C.||Teignmouth, Lord|
|Hope, G. W.||Thesiger, F.|
|Hoskins, K.||Trench, Sir F.|
|Howard, P. H.||Tufnell, H.|
|Inglis, Sir R. H.||Vernon, G. H.|
|Kemble, H.||Vivian, Sir R. H.|
|Knight, H. G.||Wilmot, Sir J. E.|
|Lockhart, A. M.||Wood, Col. T.|
|M'Taggart, J.||Wyse, T.|
|Mahon, Viscount||Young, J.|
|O'Brien, W. S.||TELLERS.|
|Packe, C. W.||Stanley, E.|
|Paget, Lord A.||Parker, J.|
|List of the NOES.|
|Aglionby, H. A.||Salwey, Colonel|
|Bridgeman, H.||Strutt, E.|
|Callaghan, D.||Tancred, H. W.|
|Courtenay, P.||Thornely, T.|
|Ellis, W.||Turner, E.|
|Evans, W.||Vigors, N. A.|
|Hawes, B.||Villiers, hon. C.|
|Heathcote, G. J.||Warburton, H.|
|Hector, C. J.||Wilbraham, G.|
|Howick, Viscount||Wilde, Sergeant|
|Hume, J.||Williams, W.|
|James, W.||Wood, B.|
|O'Connell, M. J.||Wakley, T.|
|Rundle, J.||Hobhouse, J.|
§ Amendments agreed to as far as clause A. On clause A,
§ Mr. Freshfield
moved the amendment of which he had given notice, viz., that twenty-four hours' notice should be given in case of any action for the publication of any copy of a report or other paper, to the plaintiff of the intention to lay a certificate before the court from the Speaker, &c, as in the first clause.
§ Lord J. Russell
had had some intention to move an amendment similar to that which had now been brought forward by the hon. Gentleman, but upon full consideration he had thought it better to allow the clause to remain as it stood. There were several amendments which could be suggested, but as the clauses as they stood did not affect the privileges of the House 1053 or interfere with any of its officers, be trusted the hon. Gentleman would not press his motion.
§ The amendment negatived.
Mr. S. O'Brien
hoped the noble Lord would have now no objection to state what course he intended to pursue with regard to the prisoners confined under the orders of the House.
§ Viscount Howick
hoped his noble Friend, before he answered the question which had been put to him, would consider well the propriety or rather the impropriety of discharging those persons without a petition from them and without their making any submission to the House. The parties now in confinement had not as the sheriffs had done, shown any anxiety to obey their orders, but had actually gone out of their way to oppose the House.
§ Lord J. Russell
would reserve his answer to the question which had been put to him till to-morrow. He had, however, no objection to state generally his impression on the subject. He thought the persons now remaining in confinement stood in a different position from the sheriffs. The sheriffs had come under the orders of the courts of law, and they were placed in the difficult position of either opposing the orders of the Court of Queen's Bench or the orders of that House, and they had ever manifested an anxiety to consult the wishes of the House. The House would, therefore, probably be of opinion that the attendance of the sheriff at the time appointed would not now be necessary. As regarded the son and clerk of Mr. Howard, they had both held an inferior situation, and had only acted under the authority of others. With regard to Mr. Stockdale, that person had originated these proceedings, and had done everything to thwart the House, and to set its orders at defiance Mr. Howard had aided Mr. Stockdale in those proceedings, and he was now carrying on an action against one of the officers of the House, and that action would not be put a stop to by the present bill. As he said before, he should, however, take till to-morrow to consider the case of the different prisoners.
The Lords' amendments were agreed to, the bill to be returned to the Hours of Peers.