HC Deb 15 April 1840 vol 53 cc1125-32
Sir R. Inglis

did intend, in the motion which he was about to make to the House to include all the parties committed by the House for a breach of privilege, but finding that such a course would not be so convenient as a separate motion for each party, he would adopt that suggestion. He could have wished that the task had been undertaken by the noble Lord, the Secretary for the Colonies, who, with his colleague, would have the grace of what he would then call, not an act of justice, but one of mercy, and who would also have the cordial support of the House in carrying the motion. However, not apprehending any opposition to the three first motions which he was about to submit to the House, he would avoid all provocative language, and content himself with saying, that the time was now come when the House would unanimously concur in this proposition, "That the order for the appearance of Mr. Sheriff Evans at the bar of the House on the 6th of May next, be forthwith discharged."

Lord J. Russell

I had placed a similar notice upon the paper, and I cordially second the motion of the hon. Baronet.

Motion carried.

Sir R. Inglis moved that Thomas Howard, jun., the son of Thomas Burton Howard, and who was committed to the custody of the Sergeant-at-arms for conducting the action in the cause of Stockdale v. Hansard, according to the instructions of his father, be forthwith discharged without payment of the usual fees.

The Attorney-General

would suggest the propriety of omitting the recital after the name of Thomas Howard, jun., because it was unnecessary.

Sir R. Inglis

acceded, as he was anxious to proceed in a conciliatory manner; but the language he used was the identical language of the resolutions upon the books of the House.

Motion agreed to.

Sir R. Inglis moved, that Thomas George Johnson Pearce, clerk to Thomas Burton Howard, &c. be discharged.

Mr. Warburton

did not intend to make any objection to the motion, but he would be glad to know in what manner the privileges of the House had been vindicated? There had not been a petition even presented from any of these persons deprecating the justice, or soliciting; the forgiveness of the House. But the House was informed that as an Act of Parliament had been recently passed, the entire matter would be buried in oblivion.

The Attorney-General

said, that if these individuals had suffered punishment which the House considered sufficient, he did not see why they should not be discharged. There was no receding from the privilege either by the motion made by the hon. Baronet, or by the bill which had been lately passed, and which was an act merely to afford "speedy protection" to publications made by the order of the House.

Lord J. Russell

After the remark made by the lion. Member for Bridport, it is necessary for me to state, that in agreeing to the motion, I do not agree to it on the ground stated by that hon. Member. I agree to it, because, with regard to Mr. Howard, jun., and to Mr. Pearce, they were the inferior instruments in the actions brought by Stockdale against the printers of the House, and in committing them the House acted in vindication of its privilege. The imprisonment, however, which they have suffered I deem a sufficient atonement for the offence they have committed; considering, as I have already said, that they were merely the inferior instruments. But I do not agree to their release on account of the Act of Par- liament which has recently passed, which does not make any difference with respect to the privilege of the House.

Motion agreed to.

Sir R. Inglis

hoped that the next motion which he was about to propose would be passed with as little opposition, and which stood upon equal grounds of justice as those which preceded it. The motion which he meant to propose was for the release of Thomas Burton Howard himself, who was entitled to release, on the ground stated by the noble Lord (Lord J. Russell), with respect to the son and the clerk; viz., that he was an inferior instrument. However, if that was a good reason now, it would have been a more conclusive one for not committing him or any of the parties for whose release he then moved. It was now too late for the House to state, that they could detain any person for an appeal to a court of law on any matter connected with the publication of a libel by the House. By assenting to the bill which had recently passed, the House admitted that a court of law alone could give summary protection to persons engaged in printing Parliamentary papers, and the House, moreover, by that bill, established the principle, that an appeal to a court of law was not inconsistent with the privileges of the House. Whatever might be done before the committal of these individuals, it was then clearly ascertained by the bill, the last clause of which declared and enacted, that nothing therein contained should be deemed or construed to affect the privileges of Parliament in any manner whatever. If such be the case, and if it were not, as appeared by the provisions of that bill, inconsistent with the privileges of the House to appeal to a court of law to-morrow, what violation of privilege could there be in appealing to a court of law on Monday, or last week, or last month, or last year, or at any time. The bill stated that the privilege of Parliament was not affected by its clauses, and that bill gave, at the same time, power of appeal to a court of law; where, then, could there be the breach of privilege? The moment the House affirmed an appeal to a court of law without a violation of its privileges, from that instant he held that it could not punish any person on such ground for a breach of privilege. It therefore followed that Mr. Stockdale had not, by applying to a court of law, violated the privileges of the House, and a fortiori, Mr. Howard, who was merely his attorney, and who ought not to have been committed in the first instance. He would now proceed with his motion, and avoid those recitals to which the noble Lord and hon. Gentlemen opposite had dissented; but, before he read the terms of his motion, he would state a fact that Mr. Howard had refused by letter to take any part in the action brought by Mr. Stockdale, and it was not until Mr. Stockdale appealed to him upon professional grounds, charging him with a neglect of duty to him as his client, that he took any part in the proceedings. There was another ground which it was important for the House to recollect, it was this, that if the House wished to make Mr. Howard a rich, a powerful, and a triumphant man, they would refuse the motion. Mr. Howard had taken an action against the officers of the House for excess of duty; that action was proceeding in despite of the House, and, when it ripened to a hearing, a British jury will give him such damages as will make him a rich man, in compensation for the loss of liberty he will suffer by the rejection of the motion—rich and triumphant, if not powerful, the rejection of the motion will indubitably make him. He begged to move, "That Thomas Burton Howard, having on the 6th of February, been committed to Newgate by a warrant from the Speaker, under the orders and resolutions of the House, because, as attorney for John Joseph Stockdale, he served a writ of summons upon Messrs. Hansard, the printers of this House, to cause an appearance to be entered in the court of Queen's Bench, in an action at the suit of John Joseph Stockdale, in respect of a publication ordered by authority of this House, be forthwith discharged."

Lord J. Russell

confessed, that he was not disposed, when he came down to the House, to agree to the motion which the hon. Baronet had just made; but even if he had been disposed to agree to it, everything the hon. Baronet had said ought to induce the House not to accede to this motion. Before the hon. Baronet spoke, he was afraid it might be implied by some persons that the House considered it had not the privilege of committing Mr. Stockdale and Mr. Howard for this action, but the hon. Baronet had specially removed any such implication. He denied that the bill, which was now part of the statute law of the land, bad made any difference in relation to the privileges of the House—privileges which had so frequently been asserted by a majority of the House, and which he (Lord J. Russell) should be ready again to exercise iii any future case that might occur. The House had never resigned any of its powers, or abandoned any of its privileges, by passing the Printed Papers' Act. On the contrary, it was stated in the preamble of that Act, that those powers and privileges were necessary to the House for the due performance of its functions, and it then went on to state, that the Act was passed for the purpose of giving more speedy protection, in case the privilege was invaded, against all civil or criminal proceedings which might be instituted against any officer of that House acting under its authority. One of the effects of the Act would be, that if during the vacation, or during the approaching recess, any proceedings were instituted against any officer of the House for acts done for the maintenance of the privilege, those proceedings could at once be determined; but. it did not at the same time follow, that the attorney who might institute such proceedings would not be guilty of a violation of privilege. On the contrary, should such a case occur, he (Lord J. Russell) should immediately after the recess proceed at once for a breach of privilege and move a commitment, and he felt that he should be as perfectly justified in taking that step after the passing of the Printed Papers' Act as he should have been before. Indeed he might rest his justification upon the last clause and the preamble of the Act itself, for the words "more speedy protection" implied that the protection already existed, but that it was not sufficiently speedy for the purpose. If, for instance, the hon. Member for Warwick obtained an Act of Parliament for summary conviction in cases of petty larceny, though the summary conviction was granted, still cases of petty larceny might go to a jury. It was true that the Printed Papers' Act gave summary protection to the privilege, but it was not true to say, that it took away the other powers of the House, for the power of commitment for violation of privilege remained the same as before. With this view of the case, he felt himself bound to oppose the motion. As to the alleged disinclination of Mr. Howard to violate the privilege in the first instance, it was now apparent that, whe- ther from motives of gain or of obstinacy, he was the person who most pertinaciously opposed it; and the best mode of protecting the privilege in future was to show, that the House was not likely to suffer such attempts to pass with impunity. There was no other way to deter others from attempting a like violation, and to show, that the House had not parted with any portion of its powers. In the last action which had been brought by Howard, it could not be alleged, that he was urged on by Stockdale against his will. He, of his own accord, brought an action against the officers of that House, who were only acting in the performance of their duty, who had been guilty of no act of unnecessary violence, nor had exhibited any intention of going' beyond their instructions. This action had been undertaken with a view of disputing the commitment which had attracted so much ill-directed sympathy from several hon. Members, and not for the purpose of redressing any real injury sustained by the invasion of this House, or having been subjected to more violence than was necessary for the arrest of his person.

Mr. Freshfield

thought, that if it were not inconsistent with the honour or dignity of the Mouse, it would be highly desirable that Mr. Howard should be discharged from custody. He would put it to the House whether, as a question of punishment, the detention from business of a professional man for such a period was not quite sufficient. If the noble Lord objected to the discharge at present, it would be accepted as some concession, if it were understood that a similar proposition would be more favourably entertained, after the recess.

Mr. Wakley

did not see, after what had taken place, how the proposition of the hon. Member for the University of Oxford could be consistently opposed by the noble Lord. The noble Lord must confess, painful though the confession might be, that Mr. Howard was upheld in the course he had adopted by the Lord Chief Justice and the Court of Queen's Bench. No person was more opposed than he (Mr. Wakley) to attempts which had been made to violate the privileges which that House possessed, as representatives of the people, but the bringing in a bill to protect the privileges was an admission on the part of the House that it had not the power to maintain them. Yes, he maintained, that the passing of the bill was an acknowledgment of Mr. Howard's right to institute his action, and the only course which it could now with any sense of propriety or show of justice pursue, was to liberate all the parties implicated. By a longer continuance of their imprisonment the House would be seriously injured in public estimation.

The Attorney-General

had hoped that it would have been unnecessary for him to rise on the present occasion, but the observations which had been made called for some reply. If Mr. Howard had exhibited any signs of submission to the House or have tendered any expression of regret, he should himself at once have seconded the motion for that gentleman's discharge. On the contrary, the course pursued by Mr. Howard was most contumacious, and the case had been argued by the hon. Baronet and others who supported him on grounds which would be subversive of the rights and privileges of the House, It should be remembered, that Mr. Howard was the person who had expressed regret for the part he had taken in the action brought by Stockdale, and, though he did not admit having committed a breach of privilege, he expressed himself sorry for having incurred the displeasure of the House. On that occasion he was not committed to custody, but was let go at liberty after having been reprimanded from the chair; yet in twenty-four hours after he brought another action in the same case. This was a gross violation of the privileges of the House, which ought no to be passed lightly over. The hon. Baronet said, that Mr. Howard first refused to undertake the case of Stockdale until compelled by professional duty. He denied that it was the duly of a professional man to undertake any case which he might be called upon to conduct. He should first inquire if there were good grounds, and finding that not to be the case, he should not proceed. If the House were to consent to this motion on the grounds maintained by the hon. Baronet, it would entirely do away with its power of commitment.

Mr. Ward

had supported the privilege and the commitment as long as there was a great object to be maintained. That being done, and the punishment already inflicted on Mr. Howard being sufficient, he thought they ought to throw a veil over the past.

The House divided: Ayes 22; Noes 42: Majority 20.

List of theAYES.
Broadley, H. Pemberton, T.
Bruges, W. H. L, Perceval, hon. G. J.
Buller, Sir J. Y. Plumptre, J. P.
Castlereagh, Viscount Polhill, F.
Darby, G. Richards, R.
Duncombe, T, Round, J.
Godson, R. Somerset, Lord G.
Heathcote, Sir W. Wakley, T.
Hope, G. W. Ward, H. G.
Ingestre, Viscount
Mahon, Viscount TELLERS.
Maunsell, T. P. Inglis, Sir R. H.
Packe, C. W. Freshfield, T.
List of the NOES
Aglionby, H. A. Mildmay, P. St.J.
Baring, right hn. F. T. Morris, D.
Barnard, E. G. Muntz, G. F.
Blackburne, I. Palmerston, Viscount
Bowes, J. Parker, J.
Campbell, Sir J. Roche, W.
Clay, W. Russell, Lord J.
Davies, Colonel Seale, Sir J. H.
Elliot, hon. J. E. Smith, J. A.
Ellis, J. Smith, R. V.
Ewart, W. Thornely, T.
Fox, S. L. Tufnell, H.
Gordon, R. Vigors, N. A.
Grey, right hon. Sir C. Villiers, hon. C. P.
Grey, rt. hn. Sir G. White, A.
Harcourt, G. G. Wood, G. W.
Hector, C. J. Wyse, T.
Hobhouse, T. B. Yates, J. A.
Hodgson, R. Young, J.
Hoskins, K.
Jervis, J. TELLERS.
Lemon, Sir C. Maule, F.
Lushington, rt. hn. S. Rutherford, A.
Sir R. Inglis

proposed a similar motion with respect to Mr. Stockdale, which was negatived without a division.

Adjourned till April 29.