§ Sir R. Ingliswished to ask a question of his right hon. Friend, the Member for Ripon. Seeing a notice of motion on the paper with respect to the sheriffs, he wished to ask whether his right hon. Friend would proceed with his motion, or give way to the motion of his hon. Friend, the Member for East Sussex?
§ Sir E. Sugdensaid, that he was willing to postpone his motion, and allow his hon. Friend to proceed with the motion that had been referred to by his right hon. Friend.
§ Mr. Darbysaid, that he had to claim the indulgence of the House in bringing forward a motion with respect to which he felt considerable anxiety. In calling the attention of the House to the subject he was about to submit to them, it was by no means his intention to enter into any discussion of the question of privilege which had been already so much before them. What he desired to do on the present occasion was, to call upon the House to consider the peculiar position in which the sheriffs were placed, and the ground on which a majority of the House had agreed to the commitment of those 1110 individuals. With respect to the conduct of those gentlemen, it was admitted on both sides of the House, that they had acted throughout the difficult circumstances in which they were placed with the utmost honour and integrity. It was admitted that they ought to be bound by the oath which they had taken. He believed, however, that no hon. Gentleman, at either side of the House, could accuse them of having made that any ground of their justification to the House. With respect to what had been alleged as to the conduct of the bar respecting this question, it was unnecessary for him to enter into their vindication. The bar comprised, amongst its members, some of the most distinguished men—men who, in their early career, had won the highest honours at our universities, and who in every department had distinguished themselves by their talents and attainments. It was, therefore, unnecessary for him to attempt to vindicate these men from the imputation that they were incapable of taking any other than a narrow view of such a question. He would ask the House to consider the way in which the sheriffs had acted. Had they been disposed to act with disrespect to the House, they might have paid the money over to the plaintiff before Parliament met. On the contrary, they postponed the payment as long as possible, they proceeded step by step with the utmost disposition to respect the House, and, at the same time, to discharge the duty with which they were charged by the Court of Queen's Bench. These gentlemen had already expressed their regret that the course which their sense of duty obliged them to take, should have given offence to the House. What, he would ask, would the House gain by continuing those individuals in custody? With respect to Stockdale, the case would be quite different; he was the prime mover in these proceedings, and the House was justified in taking means to deter him from again originating similar proceedings. But the case of the sheriffs was different. The course which the sheriffs had taken was that which, as men of honour, they were bound to pursue. Under all the circumstances of the case, he could not see what the House could gain by the further incarceration of those gentlemen. Admitting, for the sake of argument, that the House were right in committing the sheriffs, in vindication of 1111 what they considered to be a violation of their privileges, still he did not see what they could gain by continuing their incarceration. The sheriffs had felt that they were bound to execute a particular duty, under the solemn obligation of an oath, and he thought it creditable to them that they had shown every disposition to respect that obligation. They had no personal concern in the matter. They were merely acting as the ministerial officers of the law. It was not his intention at the present time to go more fully into this question, or to detain the House by any observations on the points at issue. He should have an opportunity before the debate closed of going more fully into the subject. He did not know at present the exact circumstances in which the sheriffs were placed. The House had committed them, but he had no sufficient knowledge as to what was to be the duration of that commitment. He believed that both sides of the House would concur with him, that those gentlemen in what they had done, had acted under an imperious sense of duty. When all parties concurred in the approval of the motives by which they were influenced, he thought that enough had already been done. The House had vindicated its privileges, and he did not see that anything was to be gained by going further. He thought that whatever hon. Member might be inclined to vote for the imprisonment of the sheriffs to the end of the session would afterwards regret such a vote. On a view of the whole proceedings, he would feel that enough had been done for vengeance, and too much for justice. As he would have the opportunity of answering any arguments that might be adduced on the other side, he would, for the present, content himself by moving that William Evans, Esq., and John Wheelton, Esq. be discharged from the custody of the Sergeant-at-Arms.
§ The Attorney-Generalrose with great reluctance to oppose this motion, but he felt bound to do so in the discharge of his public duty. If the privileges of the House had indeed been vindicated, as the hon. and learned Gentleman suggested, he would have been the first himself to have moved that these gentlemen should be discharged; but he felt that nothing as yet had been done which could be considered as an effective vindication of the privileges of the House; and he felt that if the motion were carried, those privileges would be lost 1112 for ever. He must say, that the hon. and learned Gentleman had sat down without, as far as he had heard, addressing a single argument to the House, whereby those who concurred in the vote for committing the sheriffs could be induced to agree to his motion. Let the hon. and learned Gentleman remember, that the House by a large majority decided that the privilege in question belonged to the House, and that it believed that privilege was part and parcel of the law of England. The hon. and learned Gentleman had assumed throughout his speech, that law and privilege were at variance with each other, and that what was laid down to be law in an inferior court must necessarily be taken to be law in the high court of Parliament. Now, he believed he was addressing himself to those who thought that those privileges were indispensably necessary for the discharge of their functions in Parliament; and if so, how were they to be vindicated? They had thought it right that for that purpose the ministerial officers who preferred obeying the mandates of the Court of Queen's Bench should be committed to the custody of the Sergeant-at-Arms. Why should they now be discharged? Had they presented any petition to the House? The right hon. Member for Denbigh would state what the law-was on that point, but he believed that there was not one instance where a person having been guilty of breach of privilege, and being committed, was ever discharged without having presented a petition, praying for his discharge and expressing his contrition for having violated the privileges of the House. There was no such petition from the sheriffs; no such expression of sorrow; but, on the contrary, the sheriffs had set the House at defiance. The House had made an order, which still remained on its journals, although the right hon. Member for Ripon had given notice of a motion to rescind it, and by that order he apprehended the House would consider itself still bound, that the sheriffs, having levied money on the printer of the House, should refund it. The sheriffs, however, said they would not obey the order; for they were the servants of the Queen's Bench. That he denied. The sheriffs were not more the officers of the Queen's Bench than they were the servants of any court of England—at least of the superior courts; and were no more bound to obey the writs of that court than they were to obey the orders sent 1113 to them by the House of Commons or House of Lords. They were the officers of the law. It was an entire misapprehension to suppose they were sworn to obey the mandates of the Court of Queen's Bench. They took no such oath. They were sworn to obey the law. If the privileges of that House were part of 'the law; if they were superior to the Court of Queen's Bench, as he said they were; the sheriffs ought to obey the orders of that superior court, and by doing so would satisfy their conscience and discharge their duty. What, then, was the House to do? He certainly regretted the inconvenience which this matter had occasioned to the sheriffs; but he did not suppose that their sufferings were yet very severe. They were very comfortably lodged; they had the consolation of receiving visits from many Members of this House; they were treated as martyrs, and were laying the foundation of pieces of plate, which no doubt would hereafter be presented to them. The question then was, were they to be discharged, never having presented any petition, or done anything to satisfy the violation of the privileges of the House of which they had been guilty? What would be the consequence of that if it were done? Why, that if another action were brought against the House in violation of their privileges, and a writ were sent to the sheriff, he would set all their privileges at defiance, and would act as those sheriffs had now acted, thinking they would have no other punishment for such conduct than a few days' confinement under the Sergeant-at-Arms. What benefit would arise from keeping Mr. Stockdale in custody if the sheriffs were discharged? He would proceed with a fresh action, another fi. fa. would be directed to the sheriffs, and if the sheriffs were now suffered to escape with a few days of confinement, another levy would be made, and the House would be again set at defiance. Such a course on the part of the House would be equivalent to an admission that it did not possess the right of printing and publishing what it thought proper for the information of the country, and that the privileges of the House were subject to the jurisdiction of every inferior court in the kingdom. What would be the consequence? The result would be, that every privilege which the House possessed would come before courts of law. Every Gentleman would be liable to an action for libel who shewed to a constituent any paper printed by order of the House, which a Court of Queen's Bench 1114 might deem to contain defamatory matter; every Gentleman who had ceased to be a Member, would be liable to a similar action unless he made an auto-da-fe of all his parliamentary papers. His friend, the librarian of the British Museum, told him that he felt great consternation at the decision of the Court of Queen's Bench, and was afraid to furnish the readers with any of the Parliamentary papers from the Museum library. If the law was correctly laid down in the case of "Stockdale v. Hansard," he might by so doing render himself liable, not only to an action for damages, but to an indictment and imprisonment. Under these circumstances it seemed quite clear that until a petition was presented from the sheriffs—till they made some concession—till something was done to vindicate the privileges of the House, the House would be laughed at, if, after merely a few days' confinement, it allowed the sheriffs to be discharged, and proceed in triumphal procession from the House to the city. This would be fatal to the privileges of the House; and, unless they persevered, till something effective was done, they had better have taken no steps at all. For these reasons he should strongly oppose the motion.
§ Sir R. Inglisthought the privileges of the House had been sufficiently vindicated, and its object fully attained, by the judgment of the Court of Queen's Bench, in which it recognized the right of the House to commit for a breach of privilege, and disclaimed the right of releasing the sheriffs from the custody of the Serjeant-at-Arms. The right of the House having been established, it could not be necessary any longer to detain the sheriffs, of whose conduct every hon. Member must approve in his own mind. The hon. and learned Attorney-general had spoken lightly of the inconvenience to which the sheriffs were put, but the hon. and learned Gentleman would find it rather disagreeable to be confined to his chambers or even to his House; and more disagreeable still if he were confined, as was the case with the sheriffs, in a room no larger than the Table of the House. The hon. and learned Gentleman had also denied, that the sheriffs were sworn to obey the Queen's writs, but be (Sir R. Inglis) defied any one to read the oath which the sheriffs took, and then to say, that the sheriffs ought to obey the writs or orders of the House of Commons, or of any other body other than the Queen, If the sheriffs 1115 were sworn to enforce the lex or consuetudo Parliamentaria, or even to enforce the law generally, the hon. and learned Gentleman's argument might have some foundation; but they were simply sworn to obey the Queen's writs. But he (Sir R. Inglis) would not argue over again the propriety of the course which the House had taken in committing the sheriffs; the present question was not whether the House had been justified in committing them, but whether it would be justified in discharging them out of custody after its privileges had been fully vindicated and established? The jury who assessed the damages, had committed as great a breach of privilege as the sheriffs had done, for they had acted according to the tenour of the oath which they had taken, and the sheriffs had done no more. Mr. Stockdale himself was, in fact, the only party concerned in the proceedings at law, who could exercise any discretion as to the course which he should adopt. The means which the House possessed of vindicating its privileges, showed that they were intended merely to be used for the purpose of defence, for the House had no power of proportioning the punishment to the magnitude of the offence committed against them. Suppose that the most trifling breach of privilege was committed in January, the offender if he did not make a satisfactory apology, would suffer imprisonment for seven months, while one who even entered the House and offered personal violence to one of its Members in August, might escape without being kept more than a day in confinement. Whatever might be the nature of the crime, the House had only the power of inflicting one kind of punishment—that of imprisonment; and they had not the power of measuring out that punishment in any proportion to the offence. The Sheriffs of London were, as he believed, the only parties who had ever been committed for contempt, for having done that which they had previously sworn in the regular discharge of their duty to perform. No precedent had been produced to warrant such a course: it was totally a new case; and the House he contended, had at ail events, done enough to vindicate its privileges. He was present when the bodies of the sheriffs were brought into the Court of Queen's Bench on the 27th of January, and he heard the shouts of the people on the outside as those officers passed amongst them, in their way to that 1116 court. It reminded him of the shouts of the people at the acquittal of the seven bishops. [Oh, and laughter.] Did hon. Gentlemen really know so little of the elements of English history as to be ignorant how much of civil and religious liberty they owe to the heroic conduct of those martyrs and confessors of the Church of England, the seven bishops? Do they not know how much even the Dissenters themselves are indebted for their present freedom to the stand then made by those venerable and illustrious men? "Call you that nothing," said their unhappy King, when he was told the cause of those shoutings; and do hon. Gentlemen I think so little of the state of public feeling in support of the present sufferers? He would suppose the case of a stranger entering the Court of Queen's Bench last Monday. He would have to force his way through groupes of all classes, all animated by the same feeling of anxiety, yet all in submission to the majesty of the law present in that august tribunal. What sight would greet him when he entered? He would see some of the first civil authorities of the country, the actual conservators of the peace of the metropolis of the empire—where? In the prisoner's dock, in the chief Court of Criminal Jurisprudence; arrayed, indeed, in the robes of their high office, yet not attending as Ministers of the Court; but brought in as prisoners, surrounded, he must not say by gaolers, but by the officers of this House, their keepers. And the stranger would ask what was their offence? And he would be told, that it was because they had obeyed their sworn duty to that Court and the Queen. Could such a state of things be without danger? Can men see such officers of the law and the constitution so punished for the discharge of their oaths, and yet regard this House with the feelings which this House ought to desire? He would not, however, pursue this subject further. It was enough for him to say, that, since January 18, when he had himself moved that the sheriffs be discharged from further attendance, the case was greatly changed. Then his motion was resisted; it might be, because the right of the House to commit was in danger. Now that right was established by the decision of the Court of Queen's Bench last Monday. When, therefore, their privileges were vindicated, for what purpose were the sheriffs confined? Did any one allege anything 1117 against their personal conduct when present in the House? Did any one say, that they had not done every thing in their power to meet and anticipate the wishes of this House, before they were brought here? Why, it was notorious, that, if they had not, through deference to this House, refrained from paying the money levied at the earliest day, one, at least, of the resolutions which now disgraced the journals, could not have had existence? When, then, they had thus put themselves into the power of the House, when the right of the House to commit them was not questioned by the Court of Queen's Bench, he trusted, that the House would no longer refrain from granting that relief to just and honourable men, which the present motion asked, he trusted, not in vain.
§ Mr. Bainessaid, that the question now before the House, was a question of privilege, affecting as much the interests of the people of England as the rights of their representatives in that House; and if these privileges were not maintained, the House would abdicate its functions, and prove themselves unworthy of the trust that had been confided to them. ["Hear, hear."] He was glad to find that the sympathy of the hon. Baronet, the Member for the University of Oxford, was so strongly excited by the twelve or thirteen days confinement that the sheriffs had undergone, and he hoped that the hon. Baronet's feelings would not be less ardently brought into exercise when the subject of the twelve or thirteen months' confinement of another person, whose case had been frequently brought before the House by petition, was submitted to their consideration, and who was not confined in a room, twelve feet by twelve, but in a cell, six feet by six, without any levee to console him in his cruel incarceration, and in which room he was placed during; sixteen hours out of the twenty-four, in what might be termed solitary confinement. When hon. Gentlemen's sympathies were so strongly expressed for the sheriffs, he was surprised that they had not been more easily awakened by the representations that had been made of the situation in which Mr. John Thorogood, the church-rate victim, had been so long placed, not for withholding a payment of' 600l., in violation of the order of the High Court of Parliament, but for refusing to pay the paltry sum of 5s. 6d., in obedience to 1118 the orders of the Ecclesiastical Court. It was said that the sheriffs entertained a conscientious scruple against obeying the orders of the House of Commons, whether well or ill founded he should not undertake to say; but Mr. Thorogood did really entertain a conscientious scruple, arising out of a demand to make a payment in support of a church, in the faith and discipline of which he did not concur. The objection might be right or wrong, but it was a conscientious objection, and ought to be respected. The hon. Baronet had spoken of martyrs and confessors; but here, indeed, was a martyr; and he claimed of the House of Commons, and of the hon. Gentlemen on the opposite side in particular, that they should not longer disregard the cruel sufferings to which he was exposed. With regard to the privilege enjoyed by the House of publishing their own proceedings, if they once lost that privilege, they would divest themselves of a great part of the benefit derived by the country from their proceedings. In most of the enquiries that came under the consideration of the House, there was of necessity a great deal of criminatory matter, which the law might consider libellous, seeing that truth itself was a libel, but if they were to be restrained from the publication of those facts, the reform of abuses would become much more difficult, as it often occurred that the evidence of their existence was made palpable to the country from the publication of enquiries instituted before that House, and from the publicity that was given to their proceedings. With regard to the privilege of publication which was questioned, it was a remarkable fact, that no later than Saturday last, the Lord Chief Justice of the Court of Queen's Bench had made a present to one of the Colleges of the Parliamentary Reports which were deemed so reprehensible, and he (Mr. Baines) wondered if any action were commenced for libel in consequence of the presentation of those Reports, what would be its issue, and whether his Lordship would not be placed in the same situation as the Messrs. Hansards; in favour of whom it was said that the privilege of Parliament could not be urged as a justification? With respect to the Sheriffs, he felt after the best consideration that he had been able to give to the subject, that there had been sufficient cause for punishment, whether they 1119 had sufficiently expiated their offence he was not prepared to say, but having heard no reason to satisfy him that they had, and the House having received no apology for the disobedience that had been shewn to its orders, he could not at present vote in favour of their liberation.
§ Sir W. Follettwished to take the opportunity of making some observations to the House on this question, especially after the speech of his hon. and learned Friend the Attorney-general, because he thought that that speech pointed to no termination of these proceedings. He must say, that he was extremely anxious, and he thought that every one who wished well to the character and dignity of the House must be anxious, to see some mode adopted of terminating these proceedings. He did not at all venture to hope, that any advice which he could give the House would be of the slightest service, in the difficult and embarrassing position in which it was placed. But he did think, and he thought every Member of the House must feel, that these proceedings had now come into a situation of such difficulty, that it was actually incumbent on them to consider, calmly, dispassionately, and not in the heated way in which it had been sometimes done, what course they ought to take, not only with regard to the termination of these proceedings, and the discharge of the sheriffs, but with regard to the future proceedings in those actions which had been commenced, or were threatened, against the officers and servants of the House. If it should turn out, that the result of those proceedings was, that they had not power effectually to stop actions brought against the officers and servants of the House, he could not think, that the House would lose character or dignity by adopting a different course. After what had just fallen from his hon. Friend, the Member for the University of Oxford, and from his hon. and learned Friend, the Attorney-general, and having had no opportunity of expressing his opinion before, he hoped he might be allowed, not to enter into an examination of cases or authorities of which the House might be wearied, but to state the views which he entertained upon the power of publication claimed by the House, and which had given rise to these discussions, and the broad distinction which presented itself to his mind between that power and right which he believed the House possessed of communicating to the 1120 public the whole or any part of their proceedings without fear or question, and the attempt which the House was now making to make use of its power of committal, which was vested in the House for totally different purposes, as a means of interference with the usual and ordinary course of the administration of justice by the Courts of Law. It was the former question alone, that had led to these discussions. It was the power of the House to publish its proceedings, which Stockdale called in question by his action. It was to be wished, that no other question or assertion of privilege had ever been mixed up with it. Although he (Sir W. Follett) was himself a member of the committee of 1837, by which those resolutions were reported to the House, which had been the subject of so much discussion, he did not hesitate to say, that the proceedings which had subsequently taken place, as well as the more mature inquiry and consideration which he had been compelled to give the subject, made him regret that those resolutions ever were reported by the committee, or ever received the sanction of the House. He could not help thinking, that such broad and sweeping assertions, even though in the abstract they might be true, necessarily led to mistake and misapprehension. They led to the privileges which they asserted being tested by putting imaginary cases of abuse. They were tried, not by what the House was likely to do, but what they might possibly do, and they led to charges against the House of arrogating the functions of the entire Legislature, and assuming the power to make law without the consent of the other branch of Parliament. He did not think the resolutions were open to those charges, but there was no doubt, that such misapprehension had been created. The public feeling had been excited, not against the teal privileges or powers of the House, but against the imaginary privileges and cases of power, which ought never to have been mixed up with that question. With regard to the power itself—the power of the House to communicate to the people the whole or any part of its proceedings—he was perfectly satisfied by the precedents collected by the committee, that it was a power which the House had exercised for a long series of years. It had been the practice of the House beyond doubt for two centuries. He said, independently of that, looking at the subject as a constitutional question, looking at the power of the House 1121 as one branch of the supreme Legislature of the country, at its functions as the grand inquest of the nation, he never could entertain any doubt of its having authority to communicate to the people the whole of its proceedings. After the various speeches that had been made on this subject, and he might be allowed to say particularly after the speech of the noble Lord (Lord John Russell), in which so many instances were adduced, it was not necessary for him to cite to the House the circumstances, or the instances in which the necessity or propriety of such publication would be apparent. The power of legislation was one which the House possessed unquestionably to the very highest extent. No man doubted that they might originate in that House a bill to alter the succession to the Throne. Was it to be supposed, that they were not at liberty to tell the people of the country the grounds on which they proposed to absolve them from their oaths of allegiance, and to transfer their allegiance to another?—and if in any case that may be put, the right or propriety of such publication is admitted, it must assuredly follow as a necessary consequence that the House itself must be the sole and exclusive judge of the occasions which may call for it, and of the manner in which it shall be exercised,—for this must depend on political reasons, and political consequences, or affairs and considerations of state policy, of which no court of law can have any judicial knowledge, or any means of information. It was no answer to say, that no traces of such a power were to be found in the earlier periods of the history of that House. The House of Commons might not in former times have felt the necessity of making such communications. But in his mind the mode of exercising the functions of the House must vary with the altered state of society, and with the degree of political knowledge of the people. In the present state of society, and with the present degree of political knowledge, it was essential to the true working of the constitution, that the people who were to be bound in their lives and properties by the Houses of Parliament should have an opportunity of examining all the evidence taken before committees, and all the grounds on which legislation proceeded. Whatever feeling might exist, arising he believed from what had been mixed up with the privilege contended for by the House, he was sure that when t was known that the House was really 1122 contending for the right to communicate to them its proceedings, the House would be backed and supported by the public voice. It was idle—he said it with great respect to those who used the argument—to tell them that they might exercise the privilege of publication without putting forth matter defamatory of individuals. No caution could enable them to give the information which was necessary to the public, without publishing what might be defamatory of individuals. How would it be possible to examine the working of a law? Of what use would the committee on the poor-laws have been, if they were not at liberty to publish the evidence, or if every statement in that evidence affecting individual character might be twisted into a libel? No one could prevent the publication of such defamatory matter. Although he agreed with a noble Lord, whom he did not now see in his place, that it would be much better if more care were observed in the publication of evidence taken before committees, he must say, that no care could altogether exclude matter of this kind. He would venture to say, that if any one had overlooked the report and evidence which had been questioned, before it was made public, and found that the commissioners having made one report upon the state of prisons, which report was denied by the corporation of London, made a fresh report, in which they stated that the book of Stockdale was an obscene publication—he would venture to say that no man in that House, having so examined those reports, would have thought it necessary to withhold that part from the public. And in truth the two propositions were the same, for if it be necessary or proper to the due discharge of its functions till the House of Commons should have the power to direct any part of its proceedings to be published, why then it must follow as a necessary legal consequence that no such publication by its order can be a malicious publication; and although it might contain matter reflecting on the character of an individual, it cannot be made the subject of action or indictment for libel. He looked to this case, not as a lawyer—he looked to it rot as a legal question. It was not, he thought, a question on which a lawyer could form a better opinion than any one else. It was, in his opinion, a great constitutional question; but he could not understand the distinction which was contended for by his hon. and learned Friend the Member for Oxford, when he said that there might be 1123 a privileged publication to particular persons and not to the public. He saw and could make no such distinction. The publication, if on a lawful occasion, ought to be privileged—no matter to what number of persons. Although he had said, that he would refer to no cases, yet he could not pass by one which had been so often cited in the course of these debates; the case of "King v. Lake," in which it had been held, that a publication of a petition to a committee of the House, was privileged, but that it was not lawful to publish it generally, if it contained charges against the character of an individual—that, however, was the case of a stranger to the House, who presented a petition complaining of certain grievances, and which contained charges against a judge—an action was brought against him, and it was held that it could not be sustained, for that he was fully justified in presenting such petition, and in publishing it to the members of the committee, to whom it was referred. But it was said, that he would not have been justified if he had published it generally, and no doubt he would not, for a stranger to t e House, although he has a right to present a petition to it, can have no right of his own authority, to stick that petition up in the market-place, or to publish it elsewhere, and if he does, he must be answerable for such publication. And so it is in the case of individual Members of the Houses of Parliament;—they cannot be questioned for anything they say in debate in Parliament, but they are not justified of their own authority, in publishing out of the walls of this House, any speech made by them which reflects on the character of others. But the distinction is broad and apparent between this case of "King, v. Lake," and those of W. Creevey and Lord Abingdon, and that now before us;—here the publication was not by a stranger—not by an individual Member of his own authority—but a publication by the immediate order of the House of Commons itself, for the purposes of the House itself, and therefore to be considered as a lawful publication. He could not, then, but lament, when the matter of publication was brought before the courts, and that the action was defended by the House, that the judges did not, as he thought they ought, to have, given credit to that House for not being actuated by any impure or improper motives; and the judges also ought to have given them credit for this—that when there was a publication by their 1124 order, they had no other object in view than the public good. He now came to consider what had been the judgment of the Court of King's Bench. It was not possible for him to speak in terms too high of his admiration and unfeigned respect for the judges of that Court, but after all the due deliberation that he could give to that judgment, he had come to an opinion which he felt he should be wanting in his duty if he did not state. He agreed with his hon. and learned Friend the Member for Reading (Mr. Sergeant Talfourd), that the judges of that Court would be the last men in the world to be displeased with finding that the House was of an opinion different from their's; or, with having their judgment canvassed in the delicate as well as able manner in which it had been canvassed by the right hon. Member for Tarn-worth. Members of that House had a right to canvass it in the same manner, and with the same delicacy as if it were discussed before a court of error. The judges, he was sure, would not be displeased with such an expression of opinion by him; nor when it was given upon the higher authority of the right hon. Member for Ripon, who stated that on this point the judgment of the Court was erroneous; nor of his hon. and learned Friend the Member for Liverpool, who had given an opinion to the same effect. In their opinions he concurred. At the same time he must say, that he had heard in the course of the debate, knowing so well as he did the judges of that Court, and the high position that they had attained, not only in the estimation of the profession, but of the public at large—considering these things, he would say that he had heard some observations in the heat of the debate, which had given him the greatest pain. He should say, however, no more upon that point; it was not his wish to excite any heat or dissension among them; his object in rising was with a very different view, and he would be most happy if he could induce the House to put some termination to the present unhappy dispute. He thought that he ought to state this, that though he was perfectly uninformed as to the reasons which induced the committee in 1835 to draw up a resolution for the general sale of the papers of the House, yet, that there was nothing in the whole of their proceedings, which excited so much of misapprehension as to the proceedings of the House as that very resolution. He knew that, in a legal 1125 point of view, that made no difference. The judges have all said, in the course of their judgment, that it made not the slightest difference, and yet it was impossible for the House not to be aware of what was the general impression upon this subject. It was not, he assured them, an impression confined to those persons who ordinarily looked to the mere surface of a subject; but it was to be found amongst persons of the very highest education, and who took their stand upon this proceeding; and who, while they thought there ought to be no question upon the right of publication in the House, yet denied their right to allow their servant to keep a shop to dispose of their publications. That was a circumstance which had led to very great misapprehension; and as he thought that the powers and privileges of the House should be supported as much as possible by public opinion, he must say that he should be glad were the resolution abandoned, and the orders for sale rescinded. He thought it right to state the opinion he entertained of this power of publication which he thought essential to the due discharge of the duties of the House—and because he made the strongest possible distinction between that power or privilege, and the right which the House was now claiming of interfering with the courts of law—it was that created all their difficulties. In the last Session, after the adverse decision of the Court of Queen's Bench, the House had come to a resolution in the case of Polack, and had then directed their officer not to plead to the action—not to take any notice of the proceeding—but to allow judgment to go by default. That action was not proceeded with; but in the vacation, the Speaker, acting on the resolution of that House, had directed Mr. Hansard, upon a new action being brought, to allow judgment to go by default; and the consequence was, those proceedings in which they were now engaged. That resolution, no doubt, had been carried by a very large majority, composed of all parties in that House, and, therefore, he fairly admitted that the Speaker had no other course to take, than to give the direction that he had given. He must also say, that after the large majority by which the resolution had been supported, it was hardly possible for the noble Lord, or her Majesty's Government, to take any other course than the one they had taken. But he must say, for himself, that he was no party to that resolution; he was not able at that time to attend to his 1126 duty in Parliament; and he could not bring himself to approve or confirm it, nor sanction any proceeding that was a necessary consequence of it. Nor was he able to vote for any one of the committals which had taken place, for he thought that they were attempting to enforce the privileges of the House in a manner that could not be maintained, and to assume powers which the constitution did not give them, and which he thought would be ineffectual. He observed, that the noble Lord, in the course of the discussion, had drawn him in for a share of the responsibility, in advising the House to take the course of pleading to the action brought against Mr. Hansard, in 1837. He had not advised the House on the occasion, but he freely admitted he had stated his opinion openly and decidedly that the House ought to allow their servant to plead to that action. He expressed this opinion directly after the resolution in 1837 had passed. The proceedings which had taken place since, and the adverse judgment of the Court of King's Bench had not shaken that opinion. He never could agree that the judgment of the Court of King's Bench had placed the House in a worse position. It was true that by pleading in 1837, they had postponed the evil day. If they had not done so, a sheriff's jury would have been summoned, damages would have been given, there would have been execution, and they would have had the same scene then, which they had now. They might then have attempted to prevent Stockdale from getting the money; and, as far as that action went, they would be in the same position that they exactly were now—but looking at it as a constitutional question, and independent of the practical difficulty of the matter, he did not, in his judgment, think that the House had a right, to direct its servants not to plead; nor had it any right to interfere with actions in the Court of Queen's Bench. No doubt it was true that this House was the exclusive judge of its own privileges—he did not deny it. No doubt, the House was the exclusive judge of a breach of its privileges, and had the power of committal; but then he did not think that if a servant of the House should be questioned for any act done under their orders, that they had a right to deprive the courts of law of their jurisdiction over that servant. He did not think that they ought to take the decision from the ordinary tribunals in any case that a plaintiff might have a ground of action against a de- 1127 fendant. The plaintiff might have a ground of action which their privileges did not protect. In this case the publication might possibly have taken place under such circumstances as to deprive the defendants of; this ground of defence. And then. If they made no case at all, if they declined submitting to the ordinary tribunals, then they sought to deprive the plaintiff of that to which every subject had a right, that a jury might determine and a judge consider the cause of his complaint. Would they allow him to give an illustration of this—it was by stating that which, in all probability; would soon take place. They had committed Mr. Stockdale—no one could doubt that he would bring an action against the Sergeant-at-Arms. If Stockdale brought an action for false imprisonment, what course did the House mean to take? Would they act on the resolution of the last Session? Would they not suffer any privilege of the House to be submitted to the decision of a court of justice? Would they not allow the judges to I decide that matter? Would they direct the Serjeant-at-Arms not to plead? Then he would suffer judgment to go by default. A jury would be empannelled; and what damages, he asked them, would be granted in a case of false imprisonment where no defence was made? How were they to prevent the plaintiff from recovering those damages, if the judgment were given in the recess? They might imprison the plaintiff—they might imprison the sheriff—they might imprison the counsel—they might shut up all these in prison; but they could not prevent a jury being empannelled, they could not prevent a judgment being obtained, and they could not prevent the money from being paid over to the plaintiff by the sheriff. Then the whole of what they did would be useless. What right, he asked, would they have to interfere, if the party had another cause of action beside that which was done under their orders? Supposing that the warrant was a sufficient ground for imprisonment, and he himself said it was, yet their officers might have used more force than was necessary, he might have imprisoned the party a longer time than they had directed—there might be the same case raised as in that of Sir Francis Burdett against the Sergeant-at-Arms—there might, as in the well-known case of Jay and Popham, where the Sergeant-at-Arms was stated to have extorted money for the release. Surely his hon. and learned Friend the Attorney-general would not say that the 1128 courts ought not to interfere and inquire into these things. No one would say that the Sergeant-at-Arms had a right to use more power than was necessary. The order of the House might be a sufficient justification for the committal, and yet circumstances might take place to deprive the officer of the protection of their privileges. Supposing, however, that they took a different course—and he begged the attention of the noble Lord to this—on an action being brought against the Sergeant-at-Arms, if they pleaded as they ought, then the Court of Queen's Bench, beyond doubt, would decide in favour of the defendant. There would be no doubt upon this proceeding, whatever doubt might be entertained as to any other; for the court had already decided that they were the sole judges of their own privileges, and had a right to commit by a general warrant. The court had so held it. In that action, therefore, the House will probably consent to plead; by so doing, they submit to the decision of the King's Bench, whether their resolution and their warrant are a sufficient defence:—the Court might mistake the law, and hold that they were not, but the possibility of one of the courts giving an erroneous judgment even against the privileges of the House of Commons, was no argument in his mind, for this attempt to interfere with the constitutional tribunals of the country in their administration of the law; for he agreed with the Attorney-general, and he said, that whatever were the privileges of this House, they were like the privileges of the other House, and the prerogative of theCrown—they were a part of the law of the land. That was an expression used by the Attorney-general, and he entirely adopted it; and he said that it was impossible that any matter relating to the privileges of that House or to the privileges of the House of Lords, or to the prerogatives of the Crown, could be otherwise supported than by the law of the land. The law of Parliament was a part of that law. He did not deny that occasions might occur in which questions could arise involving their privileges, and which might become subject to the decisions of courts of justice. If they were, how were they to be decided? Like every other matter of law, the judges were to decide upon them. The judges were bound to decide according to their view of the law: but honestly and conscientiously according to their view of the law. If the judges decided wantonly or corruptly, and thus sought to set aside 1129 the privileges of the House, or the prerogatives of the Crown, they could be punished by impeachment. But if honestly and conscientiously their judgment was given against the privileges of the House, then they were not to set it aside by summary interference upon their part; but they were to bring a writ of error. He did not agree with what had been said on the other side—that they would thus hold their privileges at the mercy of the courts—they would no more so hold their privileges than they so held their lives and liberties. Matters involving the privileges of the House were like matters involving the liberties and properties of all—they were to be decided according to law. At the time that the powers of the House were highest, the courts of law were in the constant habit of deciding questions involving them, as well as involving the prerogatives of the Crown; and so it was, at present, with respect to questions involving the life and liberty of every man in the country. Why, then, were the courts now not to decide questions accidentally or incidentally involving the privileges of the House. Their proceedings were not consistent. The Attorney-general had said that the House should act consistently, and that it ought to push the case to its termination. He asked his hon. Friend, how would this case terminate, and to what end was it that he looked? How did he intend to deal with the action pending? Was it not plain that if they did not take a different course—if they did not pass a legislative measure, which, after all, could only refer to the action for libel—for it could not prevent an action for false imprisonment—if they did not take a different course, their proceedings would be of no avail. And yet, not taking a different course from that which they had already adopted, they would still not be consistent. They said they would not submit to the Court of King's Bench deciding their privileges—they said this and yet the most vital privilege of the House had been submitted to the decision of the Court. He did not refer to Hansard's action, but to the return on the writ of habeas corpus. The Sergeant-at-Arms attended with their warrant when he was called upon by the court, and the court decided that the warrant was a legal ground for detention. That course had been taken with the approbation of the House, and on the recommendation of the Attorney-general. He did not say this as a reproach; for he thought it was the only right, proper, 1130 and constitutional one for them to pursue. He thought that the House was perfectly right in telling their officer that he was bound to appear before the judges, and that he ought to have stated to them the ground on which he held a person in custody. But then it was stated that they would maintain their privileges, and not submit them to the courts of law, and yet they had submitted to the courts in the course of these very proceedings the most vital of their privileges. Those on the opposite side said, that the Court of Queen's Bench would not be bound by their warrant, and no doubt the judges might have given a judgment against them and discharged the sheriffs from custody: they had not done so; they had given a direct decision in favour of the power of the House, and what right had they to assume that the judges would decide against the law, as regarded their other privileges? He knew what had been done by the judges on one occasion—in his opinion they had given an erroneous judgment on the demurrer in Stockdale's case. But, then, was it for the House at once to declare, that because the courts had come to an erroneous judgment, they would set the courts at defiance, and in no case permit the courts to interfere? He said they could not do it—the Constitution did not presume any hostility between the courts of law and the Houses of Parliament. They were never to presume that the Courts would decide against the law, no more in this, than in any other case. He asked the Solicitor General if the doctrine he contended for was this—that no question involving any privilege of the House of Commons should ever be submitted to the courts of law. Such a principle was not only unconstitutional, but it was altogether impracticable. Let them trace the matter further—civil actions were now pending—but why might there not be a criminal proceeding in consequence of all they were doing? Supposing a life to be lost in the execution of their orders—that their officer was killed, or that the officer killed another—what tribunal then would investigate that transaction? The House of Commons, in such a case, would neither have the power to investigate nor to punish. The case then must be tried before the ordinary tribunals. And again, then the judges would be called upon to decide as to their privileges, because the question of the guilt or innocence of the party would depend upon this—whether the House of Commons was justified in giving the orders under which their officer was acting, and 1131 the judges would have to submit to the jury, and the jury be bound to act upon that which was stated to them to be the law as affecting the life of the person accused. Could it, then, be said, after that, that the courts of law should have no jurisdiction over matters affecting the privileges of the House of Commons. They were endeavouring to do that which was impracticable, and they were attempting to apply their powers to purposes for which they were not given nor intended, and for which they could not be effective. They had power to punish—they had power to commit—but they had not power to prevent actions being brought. They could not prevent actions being brought—they could not prevent juries being empannelled—they could not present judgments being given—and they could not prevent parties obtaining the fruits of their judgment. All that was quite clear. Let them look at this case. If the matter had terminated in the recess, no one could doubt that they could not have interfered. But supposing it commenced in term, and they sitting, they could not stop the action unless they shut up all the offices where writs were sold. They could not do this unless they were to shut up all the courts in Westminster Hall. A plaintiff who did not care for being in custody, and an attorney regardless of imprisonment, could set them at defiance; for a jury would be empannelled and execution levied. The House had ordered the sheriffs to pay over the money to Mr. Hansard. They had refused to obey the House. The plaintiff had the money, or, at all events would have it soon. The sheriffs refused to obey the orders of the House, and all they could do was to punish them. In his opinion, the House would have been in a worse position if the sheriffs had obeyed it. If they had done so, then the plaintiff would have brought an action against the sheriffs, and the House must have interfered to prevent it. But how could they prevent it? Supposing that an action was brought, and the judgment signed, and execution levied during the recess, what relief could be given to the sheriffs by the House—none whatever—they might punish aftewards, but they could not protect the sheriffs for having obeyed them. Suppose, that instead of an action the sheriffs were attached and sent to prison, what course would they then pursue? What course, he asked, would they take? Would they send an order to the peeper of Newgate to discharge the she- 1132 riffs? But if the keeper of Newgate refused to obey that order what then? His hon. and learned Friend said, they would come at once to a contest with the Queen's Bench. Ay, but which of the two would give way? Why, the Solicitor-general—and he was cheered by many when he said so—declared that the Court of Queen's Bench must give way to the House of Commons, for recourse would be had to the Secretary of Stale, and the Secretary of State advising the Crown, would give them all the powers at its disposal, and thus they would have the military forces of the country at their disposal. If that course were taken, and there came a collision, he asked the House of Commons if they were prepared for the consequences? He would not say in these times, when a dislike to, and contempt of the constituted authorities was an evil of astounding magnitude, but at any time, whether they were prepared to place in hostile array the civil and military forces. He would say that they ought to shrink from such a contest—a contest from which no good could come; and which ever succeeded, whether the Court of Queen's Bench or the House of Commons, in either case victory or defeat would alike be to be deplored; and yet that was the course which the Solicitor-general recommended! That was the termination to which the Attorney-general looked. They must come, he said, to a satisfactory termination—that being directed to bring on a conflict in which either the Queen's Bench or the House of Commons must give way ! What, then, was the proper course to pursue? He admitted that the House had a right to complain that privileges, which he thought essential to the due performance of their duties, should have been attacked; they had too a right, in his opinion, to be dissatisfied with the judgment of the Court of Queen's Bench; but then he did not think that because the court had so decided, that they ought to be prepared to work out the proceedings of his hon. and learned Friend to a practical termination, by urging a contest between the military force and the highest civil authority of the country. As far as his humble judgment went, he did not think that they ought to do this. He was sure that the noble Lord must feel that it was not from any spirit of party he said this, it was not from any disregard to the privileges of that House, but, in any new action that might be brought, he could not himself entertain a doubt that 1133 they ought to depart from their resolution of last Session, and allow their servant to defend the action. But if there was an insuperable objection in the minds of the majority, again to submit this question to a court of law, and to try the judgment of a court of error, then they must, with the concurrence of the other branch of the Legislature, get some legislative enactment on the point. One or the other must be done. It was not to be supposed that the House would, week after week in the Session, and to the great loss of public business, permit itself to be thus occupied—much less would the House suffer itself to be so occupied Session after Session. They knew the sort of man they had to deal with; and they might be sure they would be harassed with discussions of this sort, it some effectual step were not taken to put an end to them. He did not think that it would be an abandonment of the privileges of the House if, with the concurrence of the other House, they passed some legislative measure effectually to preserve this important privilege. Whether they could obtain a declaratory act or not, he was satisfied that some legislative measure might and must be passed, which might terminate these proceedings, and in no way impair or weaken the privileges of the House; and they would find that it would, unless they could get the decision of the courts of law reversed, be the only effectual mode of settling this question. He thought that, upon such a point, any person in the House who entertained an opinion upon the point, or upon any practical course to be adopted, and which might be likely to terminate the dispute without having recourse to extremities, wag bound to state that opinion. For these reasons he had made these observations on the motion that had been submitted for the discharge of the sheriffs. Upon that motion he had now to address one more word to the House. After what he had said on this subject, and the opinion he Lad expressed of the impropriety of the course adopted, he must of course vote for the discharge of the sheriffs. He had rather, however, address himself to the noble Lord opposite (Lord John Russell), and to those hon. Members who had been most anxious to sustain the privileges of the House; what the usual course was, according to the forms of Parliament, he did not know, but he asked the noble Lord, and those hon. Members who had taken a prominent part on this question, whether enough, had not been done to 1134 redeem the pledge of last Session—of vindicating the privileges of the House. It had certainly led to one result, which, at all events, must be satisfactory to those who were contending for the privileges of the House. It had led to this result—that, by the decision of the Court of Queen's Bench, it was now clearly admitted and established, that the House has the power, and a great and enormous power, it was, of solely and exclusively deciding what is a breach of its privileges, and of committing, by a general warrant of commitment, for what it shall decide to be a breach of its privileges. That was established by the decision of the court. It was clear, therefore, that no one could dispute the power of the House to detain the sheriffs in custody. The House had an undoubted right to detain them in custody from that time till the period of prorogation. But he wanted to know what purpose or object would be served by taking this course? Was it for punishment? All admitted that, morally speaking, the sheriffs had been guilty of no offence. Had those Gentlemen acted with a view to offend that House? He could hardly suppose it, and he thought that no hon. Member would sup, pose it, after the sheriffs had stated at the bar that they believed that they were bound by their oath, and that it was their duty to pay this money to the plaintiff; and after they had paid, or were about to pay that money, he did not think that that House would keep the sheriffs in custody for the purpose of extorting out of their pockets the money they had in due course of law levied on Messrs. Hansard and paid to Mr. Stockdale. That could not be the object: no one could propose such a thing. What, then, was the object? The Attorney-general had said, in the course of his speech, that the object in detaining the sheriffs was to deter other officers and sheriffs from taking a similar course. Would it have that effect? He asked the House whether any punishment could have the effect of deterring persons, when the public sympathy and feeling were entirely with the offenders? Whatever opinion might be entertained with regard to the privileges or power of the House, he thought it could not be doubted that there was one general and universal feeling of sympathy for the sheriffs ["No, no."] He thought that hon. Members could not justly contradict this. He said again, that the public feeling and sympathy was in favour of those persons who were imprisoned for discharg- 1135 ing their public duties according to the best of their abilities and as their consciences dictated. Hon. Members ought to recollect that the sheriffs were not volunteers. They had not come forward willingly to enter into a collision with that House. They held a public situation, and they were bound to perform the duties of that situation; and he therefore considered, no matter whether erroneous or not, that the public feeling and sympathy were directed towards men who, acting in the discharge of their duty, had obeyed the writ' of the Court of Queen's Bench. How did they mean to deal with the sheriffs? How long did they intend to keep them in custody? Was it merely to punish them? They had been imprisoned already a fortnight. His hon. and learned Friend, the Attorney-general, had said, that this was no very severe punishment. He could not agree with his hon. and learned Friend, that because the sheriffs were confined in the rooms of that House instead of being sent to Newgate, that therefore their imprisonment was not very severe, for the House should recollect that the sheriffs were men of business, having their trade and affairs to look after. But to say nothing I of their public duties, it was a serious, a severe punishment to interfere with their private duties and business. He knew not whether it was the feeling of that House, or of a portion of it, but looking even at this matter as a vindication of their privileges, he for one would vote that the sheriffs be discharged unconditionally from that House. He said unconditionally, be-cause he did not feel that they had any right to endeavour to extort from them, as a condition of release, an expression of regret for doing what they felt they were bound to do. He did not think that that was a situation in which men of honour and character ought to be placed. Although, therefore, he did not know, as to the course of proceeding, whether a petition from the sheriffs was an essential part of the proceedings before they could be discharged, he certainly hoped that they would be discharged without extorting an expression of regret from them for having done an act which they considered themselves bound by their duty to do. He did think that if the House took this course, it would go farther than anything I else to satisfy the public mind, and he could not help thinking that the public mind was not to be disregarded on such a Subject. Such a course would go very far 1136 to satisfy the public mind, even if that House had taken an erroneous course, if they were mistaken, that they had no other object in this proceeding but a wish to preserve a privilege which they considered essential to the public good. He thought that this would be a right and just course, but he also thought that it would lose half of its effect if it were only adopted after a division of the House. He should be glad, therefore, if the noble Lord the Secretary of the Colonies could think it consistent with his duty to make the proposition which had been made by his hon. and learned Friend the Member for East Sussex. He wished the noble Lord would make a proposition for the discharge of these gentlemen from prison. He was sure that that was the best course that could be pursued. If, however, the noble Lord thought that this course could not be taken, and if this matter should be pressed to a division, he could only say that he should feel it his duty to vote with his hon. and learned Friend for the immediate discharge of the sheriffs.
§ The Solicitor-Generalbegged to assure the House that he never addressed them upon this question but under very considerable anxiety, and under a feeling of deep responsibility. From the moment that his attention had been first addressed to the decision of the Court of Queen's Bench, he was so struck with the consequences of that decision that he did not anticipate that that House would be able to escape from a very serious difficulty. When the committee was appointed to take into consideration the proper course for the House to pursue in consequence of that decision, he certainly did not spare any diligence to inform his mind, by collecting materials for forming a correct decision. But feeling the deep importance of the question, and also feeling the infirmity of his own judgment, while at the same time he entertained the strongest opinion, he took all possible care that he should not offer to that committee any suggestions of his own, without taking the utmost pains to render those suggestions in some degree worthy of consideration. When, therefore, he had sketched the draft of a report, he sent it to his hon. and learned Friend who had just addressed the House, for whose judgment he, in common with all who knew him, entertained the greatest respect; he sent a copy also to his hon. and learned colleague the Attorney-general; and he sent a third copy to his hon. and learned Friend 1137 the Member for Huntingdon (Sir F. Pollock). He solicited his hon. and learned Friends to do him the honour to read and consider every line and paragraph of that report; and he also solicited them to give him a meeting at his chambers, in order that at least upon that occasion the lawyers, instead of assisting, might not embarrass the committee, by having a difference of opinion upon a matter on which the committee had a right to expect their assistance. Suggestions were made by each of his hon. and learned Friends and he adopted them all. He had inserted to his draft of the report to be submitted to the members of the committee, the reasons why he thought the House had not been wisely advised in the course they had taken in the case of Burdett and Abbott; and he had ventured to suggest the grounds on which he supposed that the House had at that time acted, in order to lead to the conclusion, that however good the reasons were which might have influenced the House at that time, they were not reasons of a permanent nature, and did not stand upon the same grounds on which the present case stood, and, therefore, did not form a precedent for the House. He considered that, as the subject matter of complaint in that case was a libel, stating that that House was not a true representation of the people, and as very strong opinions were entertained on that subject, he had stated that the House probably did not think it wise to throw themselves upon public opinion upon that occasion. The House possessed considerable influence in the Court of King's Bench as then constituted, and as there was a much greater chance of judgment being obtained in favour of the House in the Court of King's Bench, than that there should be anything like an unanimous opinion in the then state of the representation, in favour of the assertion that it was a libel to say that that House did not truly represent the people; that was the reason in his opinion why the Court of King's Bench was terrified. His hon. and learned Friend, however, who had just addressed the House objected to anything being said on the subject; and, conceding the point to his hon. and learned Friend's judgment, the whole of the comment was struck out, and the precedent stood before the House of pleading to the action in that case of Burdett and Abbott, accompanied only by matter calculated to impeach the course that arose out of their own previous resolution, to the effect, that the bringing 1138 such an action was a contempt of the privileges of the House. The report recited, that in the case of Burdett and Abbott, proceedings by plea had been adopted on the part of that House. The committee, in presenting their report to the House, not only had the benefit of the judgment of the enlightened members of that committee, independent of the professional members, but they had also the best judgment of all the professional members of that committee. That report having been presented to the House let to resolutions founded on the suggestion of the report, of which the House we aware; and although he rejoiced that his hon. and learned Friend had now favoured the House with his view on this subject, yet the House could not but consider it a great misfortune that they had been led to act upon that report, that they had adopted resolutions founded upon it, having the sanction of his hon. and learned Friend, as well as the rest of the committee, that they had acted upon it up to the extent of the present moment, but that now they found his hon. and learned Friend's opinion changed with regard to these resolutions upon which the House had acted, and by means of which they were placed in the situation in which they stood. He could not but express his regret with respect to the course adopted by the House, that it had not now the sanction of his hon. and learned Friend. He had said that he never addressed the House without feeling a deep responsibility on this subject. He felt so when he acted as an individual Member of the House, when he had no right to suppose, and did not suppose that he could have any other influence; and he must say that he felt an additional responsibility from the situation in which he now stood. Although the opinions he had formed might be entitled to no reliance whatever, he begged to assure the House that he had as anxiously considered the subject with a view to form as correct an opinion as he possibly could, and the opinion he would now give was the result of as much labour and as much consideration as he could bestow on the subject; and he did feel that that House had never been called upon to consider and determine upon any question more important in any age of the country than the question then before it. The hon. and learned Member for East Sussex took credit for omitting the subject of privilege. His hon. and learned Friend near him (the Attorney-general) justly reminded the hon. and 1139 learned Gentleman that he had omitted what was all-important in considering this question. That House, he was sure, had no resentment against the sheriffs. No Member of that House felt otherwise than a feeling of regret at the deep necessity of the case which imposed this duty upon them; and when his hon. and learned colleague used the expression that the sheriffs did not appear to have suffered much, he alluded to what the newspapers reported of their levees, their feasts, and so on; but he was sure his hon. and learned Friend did not mean to attempt in a British House of Commons to undervalue the loss of personal liberty. Whether the imprisonment was for a day, or for a longer period, if it were not consistent with law and justice, and did not excite the sympathy of a British House of Commons, where were they to expect sympathy from. He, therefore, willingly admitted that this was a very grave subject—grave as affected that House, and extremely important as it affected the sheriffs now under restraint;—but what was the position of the House at that moment? Although it was his intention, if called upon to speak in the course of this debate, to advert to the general subject of debate, he did not expect that the House would be called upon to come to anything like an opinion or conclusion upon this subject, under a motion of the present form. That House had resolved that the privilege of publishing their proceedings was essential to the due discharge of its functions. The House had resolved that that House was the exclusive judge of what privileges belonged to it, and that any action or proceeding to bring those privileges under discussion for the decision of any other tribunal was a contempt of that House. Had the House since adhered to the opinion that this privilege was essential? If that were so, did or did it not form a question for consideration, whether the sheriffs of London ought or ought not to be discharged? They had been taunted with a statement that that House was wholly inefficient, and that if they attempted to exercise any power, they would find themselves utterly defeated and would only bring themselves into contempt; and he admitted that if they followed the advice of his hon. and learned Friend, that would be the result. But he protested against hon. Gentlemen who declared that contempt would follow their proceedings, and then recommended a course directly calculated to produce that end. Had the privileges of 1140 the House been vindicated? The House stood in this position—that the very persons under restraint were defying them. If the sheriffs chose to be contumacious, what was the House to do? How did the case stand at that moment? The sheriffs pertinaciously adhered to the course for which they had been committed. Was that vindicating the privileges of the House? Certainly not. When he was asked by his hon. and learned Friend how long he proposed to detain these persons in imprisonment, he begged to say that he for one, feeling that the interests of the kingdom were at stake, would vote for detaining them till the privileges of that House were vindicated. He hoped that he was not a cruel person; but being there as one of the representatives of the people of England, and the question being, whether they should have an independent House of Commons or not—for that was the question—he said, that private feeling must give way, and that he should be unfit to till the station which he held, as representing the interests of the people of these kingdoms in that House, if he were not prepared when he believed that the efficient existence of that House was at stake, to stand by and persevere in a course by which only could the privileges of the House be vindicated. They had been told that their power was little. Why then give up that little? They were told that they could not vindicate their privileges. But why give up the means which they possessed of at least making the attempt? There was no just reason for such a course. At present the matter stood thus—that the House, having resolved that it was a matter of the deepest importance that their privileges should be vindicated, here was a motion made to discharge the sheriffs, who remained as wholly disregardful of the privileges of the House as at any period in the course of these proceedings. He was exceedingly glad that his hon. and learned Friend had favoured the House with his opinion that night, because if he were wrong in the opinion which he entertained, he would be safe from causing any injury by misleading the House, as his hon. and learned Friend was there to correct him. All the hon. Members present would recollect the judgment pronounced in the Court of Queen's Bench. His hon. and learned Friend had expressed regret that some expressions had been used in that House not quite consistent, as appeared to him, with the respect that was due to the courts of law. He knew not to whom such 1141 expressions had been used. He did not recollect to have heard any of which any person could complain; but he did wish that there had been something like reciprocal respect on the part of the court. He did wish that that spirit and feeling towards the Court of Queen's Bench, as a high tribunal of justice in this country, which was felt by almost all the Members of that House, that the necessity of speaking with respect of such a tribunal had been reciprocal; but he must say, that the same sentiment was not quite so apparent in the Court of Queen's Bench. He should say, that statements contrary to law, and contrary to what was due to the House, had continually been made the basis of argument in that court. He did say, that in the very last argument insinuations were thrown out against that House which he thought not consistent with the respect due to the House. He agreed most perfectly with his hon. and learned Friend, that this was not a time when any good subject of this country would do or say anything that could diminish the respect that was due to the constituted authorities of the country; but he begged to call to his hon. and learned Friend's mind the fact, that the House of Commons was one of those constituted authorities; and he would say, with regard to that House, that charges of abuse, of malice, or of concealment, were as little warranted by the laws of courtesy and respect, as they were with regard to the Court of Queen's Bench. If that House were disposed, which he was sure it was not, and hoped it never would be, to take exception to small or trifling matters, much had passed in that court to which they might justly take exception. Even the very style and course of argument of the bar were such as, he would venture to say, had never before occurred within the memory of his hon. and learned Friend. But that House was engaged in a question of much too great importance to attend to petty attempts at insult, not worthy of the attention of the House. He begged only to observe that he hoped, whatever conflicts might arise, that both tribunals would be treated with the respect to which they were constitutionally entitled, and of which they could not be deprived without great injury to the public. He, for one, was quite surprised at the course which the argument had taken. He should observe, that whenever the committee—it had been revived, he believed—should come to make a report upon the judgment of the Court of 1142 Queen's Bench, he trusted that they would have the valuable, or rather invaluable assistance of his hon. and learned Friend; for in his humble opinion, a more unfounded judgment had never been pronounced by any tribunal. That judgment had been given in opposition to the whole stream of authority during a long course of time. Authorities were misstated (no doubt, unintentionally), important points were passed over, and he would venture to say, that altogether, it was as little warranted in its conclusion, as any judgment that had ever been pronounced. Now, what were the constitutional grounds of the question? His hon. and learned Friend said, that they ought to submit their privilege to the Court of Queen's Bench, that they ought to plead, and afterwards bring in an appeal in error to the House of Lords. Why, what if their plea were overruled? He would ask, was it not true that the beauty, strength, and permanence of the constitution consisted in there being three independent branches of the Legislature, and had the House of Commons, as one of them, no powers? Its existence in the year 1840, was the best evidence that it had. Through what corruptions had it not passed, from what quarters had it not been exposed to attack? And yet it existed, and in a condition to maintain its position and privileges. Yes, there were three independent branches of our constitution, and upon the importance of this point, he would beg to read a few lines from Mr. Justice Blackstone's Commentaries. It was known that an edition of that work had been edited by Mr. Justice Coleridge, one of the judges who had pronounced against the privilege of the House of Commons, and in that edition, he found the following words. The hon. and learned Gentleman read the passage:—
The constitution of the Government of this land is so adroitly tempered and compounded, that nothing can endanger it but destroying the equilibrium of power between one branch of the Legislature and another; if the independence of any one of the three branches were lost, or if it was to become subject to either one of the other two, this would soon end the constitution.''Now, if this House only held its privileges subject to a judgment in the Court of Queen's Bench or any other court, or in the House of Lords, as a court of appeal, in the last resort, he would ask, could it be said to be independent—was its equilibrium maintained? 1143 No, its powers were gone, as a branch of the constitution, it was destroyed. He had understood his hon. and learned Friend to say, that there were no laws of Parliament as distinct from the common law. [Sir W. Follett: No!] He had certainly understood his hon. and learned Friend to say that the privileges of Parliament depended on the general law of the land; those, he believed, were the very words his hon. and learned Friend used, and then he would ask what was meant by the general law of the land? Was it meant to be denied, that there was a law peculiar to Parliament, a law not dependent upon, nor part of, the common law, and not executed by the processes of common law? That there was a Parliamentary law, just as there was an ecclesiastical and an admiralty law, distinct from the common law, this was what Mr. Justice Blackstone said. The hon. and learned Gentleman read another passage declaring that:—The law and custom of Parliament had its origin and existence in one maxim, that all the privileges of the House of Commons should be discussed in that House only, and not elsewhere. It rested with Parliament to declare and vindicate its own privileges, and, therefore, the independence of both Houses was best maintained by keeping their privileges indefinite.The only difference that he could see between Mr. Justice Blackstone and Mr. Justice Coleridge was, that whilst the former during a long and splendid life, maintained the same opinion upon this subject, the latter had seen occasion to alter his. Parliament had no privileges but what were necessary to the execution of its functions, and to enable them to do justice to the people. This was the principle upon which the privileges of Parliament were based, but it was essential that in defence of those privileges each branch of the. Legislature should stand firm, and resist the encroachments and interference of the other authorities. This was a most essential point, because no one could anticipate the nature of objections which might be taken to them, the quarters in which they might be made, and the manner in which they should be met, and which must necessarily vary with circumstances. But the House of Commons was designed especially to check the encroachments of the Lords and of the Crown, especially of the former. Now, if the House of Commons became dependent upon the House of Lords, as it would be, if it were to submit to an appeal there, how 1144 could it have that effect, for which, amongst others, it was designed? How would it be possible for them to resist the encroachments of the other House, if they were to submit to a judgment there? And how could the people of England, through the House of Commons, maintain their share of the power of the constitution? This was the question at issue, and upon this depended whether they were or were not to be the judges of their own privileges. See how often questions of privilege might arise. Take, for instance, the power of examination of evidence. There was not a witness or a paper which the House might call for, but the Court of Queen's Bench might interfere, to say whether it was necessary or not. The Court of Queen's Bench said, that the privileges of the House extended to all that was essential for the due discharge of their functions; but who was to decide what was essential to that purpose? Which was the fittest tribunal to decide that question, the Court of Queen's Bench or the House of Commons? The judges had to decide the common law and the statute law of the land; but was it part of that to decide upon the inquisitorial functions of the House of Commons? The judges said, that they would admit all the privileges which were necessary for the due performance of the functions of the House of Commons; and he did ask was it not necessary towards the due execution of those functions, that they should put those whom they represented in possession of all the information in their power, and upon which their legislative decisions were founded? Looking at the question in that light, how was it possible, consistent with the due discharge of its functions, that the House of Commons could ever become dependent on the House of Lords in the matter of its privileges? The question in ideality was, what power had the people of England, through the House of Commons, to maintain their proper share in the constitution? And that question depended on the other, whether or not the House of Commons was the judge of its own privileges? Looking at the constitutional functions of the House of Commons, many cases might arise in which not to have that privilege, would render its proceedings a nullity. For instance, in cases of examination before a committee, when, according to the law of of Parliament, the strict rule of evidence, as followed in courts of justice, was dispensed with at the pleasure of the commit- 1145 tee. Suppose the Court of Queen's Bench took it upon itself to direct the Committee as to the necessary evidence, or to summon the witnesses before itself, or Mr. Gurney, the short-hand writer, or even one of the Members, for the purpose of compelling the disclosure of what took place. That would be one of the results to which the concession of a power to decide on the privileges of Parliament to any other tribunal but Parliament itself, would necessarily lead. The duty of the Court of Queen's Bench was to administer the common and statute law of the land: it had nothing to do with the administration of the law of Parliament. When, therefore, that court pronounced the publication of the report in question unnecessary, it was a striking indication of the little safety there would be for the privileges of Parliament in its hands. Then again, if the decision of the Court of Queen's Bench as to the necessity or non-necessity of the privilege in question were admitted, what other privilege might not also be questioned by the same power? It might compel Members to serve on juries, in such a case, or it might even pronounce that exemption from arrest and freedom of speech were not necessary. How, then, would the House be able to act in cases of impeachment? how in case of particular bills? for both of which evidence of a peculiar nature might be necessary. In fact, there was not a single function of the House which would be unaffected by the assumption of the Court of Queen's Bench. Publishing its proceedings was the smallest part of the great subject which that assumption opened up. The Court of Queen's Bench in this instance went far beyond its scope, by starting a new principle—the supervision of all the privileges of the House of Commons. The personal character of the judges of the present were far different, no doubt, from those of former times, and it was much improved by the law which made them independent of the Crown; but that law gave them no new jurisdiction, and they had no more power over the proceedings of Parliament now than they had when they were the most servile and slavish persons in the community. Yet the privileges of that House were not denied by the latter. The constitution of this country was not, however, formed for any given person, or to be applied to any given time. The House of Commons existed because it had the power to defend itself from assault. The inability to attack it, took away the desire to do 1146 so. To surrender that power would be to forfeit the means of doing its duty to the public. That power was its privilege. Each branch of the Legislature was designedly constituted so as to watch over and check the other branches. If that position were true, would it be consistent with that design for that House to become as it were the tenants-at-will to the House of Lords? That House was constituted to keep the prerogative of the Crown under control. Where did King Charles the First find the firmest support in the exertion of his prerogative—where did he find the fullest sanction for levying ship-money but in the courts of justice? How then, could the House of Commons discharge its functions in the constitution, if its privileges, which were its power, were dependent on the decision of the judges of these courts? When the constitution of this country was first framed, the two Houses of Parliament sat together, and it was clear that for many purposes they formed but one court—that was to say, a court of judicature. The courts of justice were in the frequent habit of referring to it when difficult cases arose before them, and the Statute of Treasons of Edward 3rd, contained a clause which forbade the judges to pronounce on any point that might arise on its construction, until they had taken the opinion of the Legislature. Writs of error now, were not as of the House of Lords alone, but as of Parliament; and Chief Justice Holt stated in the celebrated Banbury case, that the judgment of that House was not competent and of force unless it was considered as of King, Lords, and Commons. At no period, in fact, were the courts of justice in a condition to exercise any jurisdiction over Parliament. Could it be permitted that they should assume it now? Another point upon which his hon. and learned Friend spoke, was their liability to abuse their privileges. He admitted, that every tribunal, in the exercise of its privileges, might run into abuse. That was a possible danger which would never be entirely got rid of. But if the privilege were taken away, or subjected to another tribunal, still it would be liable to abuse there, and then there would be a double abuse. The prerogatives of the Crown, also, were liable to abuse. Take the prerogative of mercy for instance. Why, this was a prerogative which was open to much abuse—it might be bartered for—and men's lives bought and sold; but that was no sufficient reason why the prerogative of mercy should be 1147 done away with. So, also, the jurisdiction of the House of Lords in error was liable to abuse—to that species of abuse which every human tribunal and institution of every kind would never be entirely freed from. It had been said, that the House of Commons might stretch its authority so far as to do many extravagant things; as, amongst others, to order a person to be put to death. Well, now, even suppose they were to arrive at this state of things would they be prevented in their proceedings by the Court of Queen's Bench? No! Before they could attempt anything of this kind, they would have arrived at a height of tyranny which no court could restrain, and all the institutions of the country would have been swept away before it. But the supposition was too extravagant and devoid of all reason or probability to come in the way of the argument at present. Lord Ellenborough, in the case of "Burdett v. Abbott," was pressed with some extreme proposition of this kind, which he waived answering as long as he could, but at last said,That it was not reasonable, it was not de-rent to expect such a thing from the House of Commons, but that if such a case were to occur, the courts of law would do their duty.This opinion had been attempted to be made the basis of an opinion that the courts of law would, in some cases, examine into the proceedings of this House; and that this was a case in which they might do so. The privileges of this House were not for the personal advantage of its members, but for the service of the public. Even that of privilege from arrest, was in order that the public might have the benefit of a Member's attendance to his parliamentary duties. But if this doctrine were established on the part of the Court of Queen's Bench, every one of their privileges would be in the hands of the judges of that court. In the case of Pemberton and Jones, they were committed for acting and pleading at the bar of the House of Lords, against the orders of their House. Did those persons appeal to the courts? No. The first case in which the privileges of the House were decided upon by the courts, and that was relied upon by hon. Gentlemen opposite, was an opinion entirely extra judicial. Sir Orlando Bridgeman, who greatly disliked the House of Parliament, who was the friend and the adviser of Charles II., went out of the way to express an opinion against the privileges of the House. He 1148 gave an opinion that a Member was not privileged to be free from suits during the sitting of Parliament—a privilege which had existed down to the time of that judgment—a privilege which had existed by the joint declaration of King and both Houses, and which continued down to the period when it was recently and voluntarily abandoned. The act of 3d William III., c. 3, was the first act that limited expressly the privilege of arrest; the act of 11th George II., c. 24, was the next for the same purpose; and the act 13th George III., c. 50, was the last. These acts took full notice of and modified that which the judge had decided not to be a privilege—a privilege which he could show, in page after page of the Journals, had been exercised down to the very time of the incidental denial, which continued after that extra judicial decision, and which was at last decided by act of Parliament. That was the case which was the main foundation for the present judgment. The question now was—was the House of opinion that it was part, of the British constitution to have an independent House of Commons? If that should be the case, the House of Commons was charged with the duty of watching that privilege, and of resisting all attempts at encroachment which might proceed from either of the other branches of the Legislature, as they were charged with the reciprocal duty with regard to that House. If that were the constitutional doctrine, was it to be a consequence that every privilege should be brought to the decision of a Chief Justice Jeffries, or of a Chief Justice Keating, or of any other man who should be of equal notoriety in history? He did not mean to say a word against the respectable man now on the bench; but others might come. And he called upon the House, and he looked to the House to maintain this one privilege, because if it were not independent of the House of Lords, all privileges might be successfully attacked. It was not a part of the constitution to give a privelege without giving to that privilege a place in the constitution; and if the privilege were not to be maintained, the constitution was destroyed. The recognition by the King and Lords, and the assertion of the House of Commons of its independence of the other branches, were without end. There were instances without number, that the House had not only a constitutional, but a judicial power. He would read to the House the names who admitted 1149 most fully that the House was the sole; judge of its own privileges. Among the judges who held that the courts of law had no jurisdiction to judge of the privilege, were first the twelve judges in Thorpe's case. It was laid down also by Coke, by Pemberton, by Jones, by Denman, by Wright, by Foster, by De Grey, by Tenterden, by Mansfield, by Fortescue, by Erskine, by Kenyon, by Powell, by Gould. From each of those judges he could produce the distinct statement that the House was the judge of its own privileges, and that the courts of law had no jurisdiction. Did the House learn, in the present judgment, what was contended for in the former? Did it not show the uncertainty there would be in passing through all the courts? For if they went to one, they might go through all—they might go through many from which there was no appeal, There might be a discharge under a habeas corpus; there was no appeal from that. Then, again, there might be a commitment under a general warrant; still there would be no appeal. And many other proceedings might arise in which there could be no appeal. The House would, in fact, stand on such a basis, if it rested for its privilege upon the courts of law, that it could not act in any case whatever. Their attention had been already called to the necessity which might possibly arise for the suspension of the Habeas Corpus Act; they had been referred to the necessity of passing strong measures of legislation. They might have to act on a sudden; they might require to send for witnesses or for papers. Suppose, in coming, a witness should be arrested, or suppose he should not choose to come. Suppose they should want a witness from Birmingham, or Bradford, or Sheffield, or any other disturbed district. Was the Court of Queen's Bench to decide whether the witness should be held under such arrest? Suppose, when he did come, he should refuse to open his mouth and be committed. That, too, might come before the Court of Queen's Bench; so that, in fact, all their privileges might come to be decided by the courts of law. But if their privileges were to be so decided, would not the constitution have provided the means by which they could ask the courts' opinion before they used a privilege? It would be impossible to go on without their privileges coming constantly before the Queen's Bench. They would not know how to proceed. They would either be ultimately 1150 dependent on the House of Lords, or they would be without remedy altogether. It appeared to him that the question was most important. They ought to consider whether the privilege was not the right of the people of England. He cared not for any clamour about the sale of papers, neither did he care for the clamour about the possibility of abuse. It was a duty which the House owed to maintain its place in the constitution. They would not perform that duty if they released the sheriffs. Would it be said that the question was irrelevant, whether they ought to discharge the sheriffs? Was it not proper to call the attention of the House to this? Some hon. Members said that the sheriffs were only the official instruments. They were the main soul of the proceeding. What was the position of the sheriffs? A writ of execution was issued against Messrs. Hansard. Now he owned, with the knowledge of his character, he was not surprised at the warm and susceptible feeling of the hon. Member for Oxford (Sir R. Inglis) as to the sheriffs; but that his hon. and learned Friend should refer to the sheriff's oath, did strike him with wonder. A greater insult he had never heard. Of course no sheriffs were to be punished. Oh, no ! they were rather to be objects of pity and commiseration—they were the mere machinery—of course all Members were to be arrested—of course all ambassadors were to be arrested, and of course their servants, of course every franchise was to be invaded when a writ was in the sheriff's hands. He hoped hon. Members would listen; for if they saw the effect of their own arguments, he was sure they would not maintain those arguments. If the sheriff's oath were so binding and extensive as was supposed by hon. Members—if it were the duty of the sheriffs to execute all the Queen's writs—if he supposed what was supposed by the House, what would be the result? Any attorney's clerk might go to the office, and issue a writ against anybody. A writ was not an accredited act of the court. The court took no notice of it until the writ was brought before it on motion. Any writ might issue against anybody, provided only the fees were paid, for that was the only necessary preliminary. If it were the true meaning of the oath, that the sheriffs were to execute all the Queen's writs, why should they not arrest a Member of the House?—why should they not arrest an ambassador?—why should they not arrest a peer? 1151 There was no exception in the writ. The non-execution in the case of privileged persons, was the sheriff's own act. He said, then, that for those who knew the business of the courts, to talk of the oath being so binding that the sheriffs must execute the writs, was an insult. All the oath meant was, that the sheriffs should execute all such writs as they ought to execute. [Oh, oh !] What answer did hon. Gentlemen who cried "oh!" give to the statement that the oath was not followed if the arrest were against a privileged person? Mr. Hansard was a privileged person. That was the very point to be tried. The oath was that the sheriffs should execute such writs as they ought, according to the best of their skill and judgment. That the sheriffs pretended to know anything of this oath when the writ was put into their hands, seemed absurd. It was not till they had executed the writ, that they looked at the oath; and then they thought which was the strongest body, and they chose to think the Queen's Bench the most powerful. Hon. Gentlemen might shake their heads; but if they looked for the practice, they would find, from every one acquainted with legal practice, that there was not the tittle of a foundation for their supposition of the sheriffs' duty. Nothing was more common, than that the sheriffs should take an indemnity, and return no goods, although there might be plenty of goods. If the person giving an indemnity wished to try a right, the sheriffs would immediately return nulla bona, or even on an indemnity, they would return non est inventus, when the defendant had been within their power. It was the constant practice, and nobody ever heard of the sanctity of the sheriff's oath till they came into that House. They dealt with writs on their own responsibility, and they executed them or not with a regard only to their own safety. The sheriffs were bound by their oaths to execute the writs according to law. If their duty were to execute a writ against a privilege, they ought to do it; and yet if a writ were against privilege, they did not do it, even when they had no previous notice of privilege. In the present case, however, the sheriffs had express notice before they received the writ. Before they did anything under that writ, they were forewarned. Why did they act as they had done? Because, as he thought, they acted according to bad advice. He had expressed that opi- 1152 nion to the under-sheriffs before. He thought so still. They thought that the House of Commons had not the power of enforcing the privilege which it was said had been infringed. They thought, that they would be safer in their obedience to the Court of Queen's Bench, than in their obedience to that House. Now, however, they had to consider how this House would maintain its place in the constitution. By what means had the House hitherto maintained its position in the constitution? By constantly committing sheriffs and bailiffs. No one had ever heard of the oath interfering. In a few instances he knew Parliament had interfered with the higher authorities; but usually it took the ministerial officers. When the House was informed of the arrest of a privileged person, it ordered the sheriff to attend with the prisoner; and if the prisoner were really privileged, the House committed the sheriff and discharged the prisoner. If hon. Members would turn to the Lords' journals, they would find page after page of commitments of sheriffs. The House of Commons had no other means of maintaining its privileges; the courts had no other means of protecting themselves; and, whether it were a good or a bad method, their only protection was the same as the means possessed by the Commons—their only protection was, by dealing with the instruments. How had that mode answered? It had maintained their privileges down to the present day. He had heard it said, indeed, "What will all this end in? You have no power of preserving at all times your privilege—your method is insecure and imperfect." Pray, how did it happen, then, that they had overcome all obstructions—that they had done so in worse times than the present, and in worse than he ever expected to see again? They had preserved those privileges when the courts, and the Lords, and the Crown were all against them. How had they done so? By committing the sheriffs. The privilege was assailed by the immediate acts of those officers; therefore it was the House who dealt with them, and they had been at several different times committed. It was extraordinary that those who admitted that the privilege was essential, and who admitted that it existed, said also "Pray pity the poor sheriffs; they have only acted from a sense of duty; pray let them out. "If the House were inclined to tell the sheriffs that they might disregard the privileges of the House, pray let them out. Hon. Gen- 1153 tlemen, in their arguments, had said "Suppose this should happen, and suppose that should happen, and suppose you are defied at every step;" why, with this argument, they might go through every court. The Court of Chancery cannot get its power obeyed except by commitment; therefore, pray give up that power The Queen's Bench, if it orders anything to be done, can only have it performed through the power of commitment; therefore, pray give it up. And yet the power of commitment had preserved the constitution, and it had preserved the courts; and when they were asked to carry it out, they ought not to shrink from their duty. No one was more alive than he was to the evils of the conflict—no man had been more anxious than he had to avoid them. He had endeavoured to find some way of surmounting them, but he had not succeeded; and his hon. and learned Friend who had sought the same thing had only produced for the remedy the abandonment of the privilege by abandoning the means of maintaining it—for commitment had had the effect of maintaining privilege. Neither House had any means of preserving its privileges except by dealing with the officers who acted inconsistently with those privileges. That was their only mode. How were they to prevent their privileges from being violated if they used not those means? They talked of allowing the sheriffs to pay over the money to Mr. Stockdale. That would only encourage Mr. Stockdale to begin again. How could they prevent it? How were the sheriffs prevented from arresting the Members of that House? By the fear of commitment. How were others prevented from interfering with the privileges? By fear of commitment. That very fear of commitment was what enabled them to sit there. The sheriffs had levied upon the goods of Messrs. Hansard. Suppose they had taken Messrs. Hansard in person, as they might have done under another form of writ, instead of taking the goods, what would the House of Commons have said? Would they not have said, "Be so good as to let out Messrs. Hansard immediately, or we will commit you?" The money only represented Messrs. Hansard—the sheriffs had Messrs. Hansard in their pockets in the shape of the money. Would the House permit Messrs. Hansard, who were their servants, entitled to privilege—would the House permit officers of the House to remain in custody?—and would they consent to the sheriffs being discharged, 1154 whilst they retained the custody? They would not. The money was in the same situation. It was obtained in satisfaction of the judgment from Messrs. Hansard's property. The money was as much a satisfaction of the judgment in p in of law as an arrest of the bodies; and therefore the question really was, whether the sheriffs should be permitted to render the breach of privilege available to Mr. Stockdale, to enable him to work out satisfaction, and to allow the sheriffs to assist in giving him the fruits of his judgment? How long, then, it was asked, would they keep the sheriffs? He replied, till the privilege of the House was vindicated. Was he right or wrong in his first step? Was the House contending for personal privileges or for the benefit of the people of England. If it were contending for the latter, as he averred it was, could any pity for the sheriffs be put in competition with the duty they owed to the people? If they persisted, would the Queen's Bench so outrage law as to send sheriff after sheriff to be committed by the House? It would not. If they retained the sheriffs it would be because they should be prevented from paying the money to Mr. Stockdale, and because they chose to rely for protection upon the courts, and not upon that House. Suppose they should repay the money to Messrs. Hansard. The Court of Queen's Bench had issued an attachment. That writ of attachment could not be executed whilst the sheriffs were in custody; but suppose, by repaying the money, they should in effect discharge Messrs. Hansard from custody, what course would the House take to prevent those who should seek to punish individuals for obeying the orders of the House? It would commit those persons. He had read in one of the newspapers, that it was asked by a distinguished Member of that House, "Is there an instance of any court interfering with an action?" If the hon. Member had opened the pages of the journals, he would have found a hundred instances, particularly in the Courts of Equity, where actions were brought against persons, and they were imprisoned, in which the gaoler was ordered to discharge those persons, and in which the court ordered the commitment of the gaoler. But then, it was said that they could not stop the action. Why, all experience showed that the action was practically stopped. He knew there was a technical difficulty in stopping the action; but the moral effect was sufficient. The warden of the Fleet, the mar- 1155 shal of the Queen's Bench, and indeed all sorts of gaolers had been, committed over and over again by that House. Like all other things, it might become necessary to pursue a harsh course; but if they were pursuing a harsh course, they were taking one which was strictly parliamentary, and one which the courts of justice had frequently followed. The Court of Chancery he knew would not permit its officers to be questioned in any other court. He happened to have in his hand a case to which the name of his hon. and learned Friend was attached. A man was taken into custody on an attachment from the Court of Chancery, which he complained of as being irregular. He brought his action, in which he laid his damages at 8,000l., just as Mr. Stockdale here laid his damages at 50,000las a fair estimate of injury. His hon. and learned Friend persuaded the Court of Chancery to stop that action. "Why, if the man were improperly taken on an attachment that was irregular, ought he not to be enabled to bring his action in another court and obtain redress? ''would say the hon. gentleman who argued on the other side. "But no," said the Court of Chancery; "if you require justice for any injury you have received in our court, we will give it in our own way." What, then, would be the sheriffs' position if they should yield obedience to the orders of this House? Suppose the Court of Queen's Bench should order the coroners to take the sheriffs on the attachment. He did not know whether the coroners would have any appetite for such an office; but suppose the coroners should come to the House and say, "We have received writs to enforce payment of money which has been re-paid to Messrs. Hansard under the orders of the House," and should ask protection. The House would tell the coroners not to execute the writ. What would be the next step? The court would issue an attachment against the coroners. The usual course under such circumstances was, upon an intimation of the writ being issued, to order the Sergeant-at-Arms to arrest the person coming to execute it; and then, when the officer should come, instead of his taking the coroner, the coroner would take him. Who was the Court of Queen's Bench to send next? Why, they must stop. That House, he apprehended, was not different from former Houses that had maintained their privileges. Was it to be contended that the constitutional power which, in the worst of times, had preserved 1156 that House from corrupt courts and a tyrannous House of Lords, was now lightly to be surrendered, and that too under colour of releasing two poor sheriffs who steadily persisted hi a course of disobedience to the orders of the House? No; that was not the course for the House to pursue. Let it be remembered that in former times, when parties had been committed for contempt, the House in order the more strongly to assert its privilege had addressed the crown not to prorogue but to adjourn the sitting of Parliament, in order that the offenders might not escape from their imprisonment. Let not the sheriffs suppose—let not their advisers suppose—that the House was not armed with sufficient power to render the maintenance of its privileges effectual. The House might continue the imprisonment of the sheriffs, and by so doing would only be imitating the example of former Houses. If the House were now to act with pusillanimity—if it were to evince an insensibility to the value of that which was intrusted to its charge—if it were to desert the people of England, by lightly abandoning its own undoubted privileges, it might hereafter be easily overcome, and would become, and justly become, an object of contempt. If the Court of Queen's Bench supposed that the House of Commons was wrong, the only course for it to pursue was, to make a communication with the House of Lords, with the view of obtaining a conference upon the subject. His hon. and learned friend had proposed legislation to meet the difficulty. He (the Solicitor-general) did not see how any legislation could be effectual to secure the desired end. He should, however, be sorry to abandon, the hope that some mode might be discovered of meeting the difficulty, without sacrificing the privileges of the House; and he could assure his hon. and learned Friend, that he should be most anxious to lend his best assistance towards the discovery of such a mode. If his hon. and learned Friend would suggest any course, he should be happy to join him in prosecuting it, provided it did not interfere with the privileges of the House. It was the bounden duty of the House to preserve the Constitution entire. Therefore his humble advice to the House would be this:—Manifest to those who now treat you with contempt—not in the way of anger—not in the way of resentment, but in the way of a high tribunal, charged with great and solemn duties involving the interests of the Constitution—in this manner manifest to those who are disposed to 1157 treat you with contempt what is the extent of your power, till your privileges are vindicated. Do not discharge the Sheriffs till they restore the money. He could propose no other limit to their imprisonment than that. If they thought fit to pay the money to the plaintiff, and to rely upon the Queen's Bench, let them do so, but let not that House sacrificeits duties. Much as he lamented the imprisonment of these gentlemen for fifteen days, or even for one day, yet he must say that their discharge at that moment with the money in their pockets, defying the House, and not even condescending to make an apology, would be wholly inconsistent with everything that was due to the dignity of the House. His hon. and learned Friend had said that it would be too much to ask the sheriffs to say that they had done wrong, because it would hurt their feelings. What would have become of the constitution if other Houses of Commons had always been so very delicate—so truly tender hearted? "This," continued the hon. and learned Gentleman, "this is what I contend for: unless you are determined to detain these sheriffs until they submit, do not detain them one hour longer. I say more—if I had been here when the motion for their commitment was proposed, I should humbly have submitted to the House this point for its consideration:—do not commit these gentlemen unless you are prepared to render their imprisonment effectual to the attainment of the great constitutional purpose of redeeming the privileges of this House. I do not know whether I have conveyed to the House my own view of the manner in which the course that has been pursued is to be rendered effectual. My hon. and learned Friend on the opposite side says that you will fail in this, and fail in the other, and that you cannot accomplish what you propose. I ask you to look back to what has been done in former times, and to anticipate the future upon a well grounded review of the past. Tell me, if any man can, why the powers, which have hitherto been effectual, are now to fail? Every step that the House has taken in this case I am prepared to vindicate upon the most distinct parliamentary authority. I do not choose, at this moment, to occupy the time of the House by referring to precedents, to the journals, and to various other sources of information; but I am prepared to produce the highest and best authority in vindication of every step that has been taken. This I am sure of, that you are now in the 1158 direct, well-grounded course of precedent and parliamentary law. You may go out of it, if you please. Your ancestors found it effectual: if it fail with you, it can only be because you will not follow their manly example.
§ Sir E. Sugdenrose, but was interrupted by cries of "Adjourn." He wished to say a word in reply to his hon. and learned Friend, who had distinctly said that they ought to keep the sheriffs in prison until they had paid the money back to Mr. Hansard, and that by adjournments instead of prorogations of Parliament, their imprisonment might be made perpetual. They should then either make up their minds to keep them in custody for ever, or to let I hem go at once. The hon. and learned Gentleman had said, suppose that the sheriffs were actually to obey the orders of the House, what security would they require from them? He had stated that they might be attached by the Court of Queen's Bench, and that the power of the House might be exerted in reaction by committal. By committal of whom he would ask? Of the Judges? [Mr. Sergeant Wilde—Of the officer of the Court who appeared,] But the time might arise, and the hon. and learned Gentleman anticipated that it would arise, for committing the Judges themselves? The hon. and learned Gentleman contemplated an appeal to the military, not to repress popular tumult, not to put down an outbreak of insurrection, but to beard the Judges of the Court of Queen's Bench, for to this it would come. The hon. and learned Gentleman said that the House was maintaining the privileges of the people of England, but he would maintain that there was in reality only the majority of that House arraigned on the one side, while on the other was to be heard the unanimous voice of the people of England. ["No, no."] He would repeat it. He hoped hon. Gentlemen would allow him to repeat that that was his conviction. [" No, no,"] It might not be believed there, but he believed it to be the fact. He did not speak on this subject without authority. He had that day presented a petition in favour of the sheriffs, signed by no less than 500 members of the bar, of all shades of political opinion, commencing with the barristers of the Court of Chancery, and followed up by those of the other courts. [Interruption.] If hon. Gentlemen would speak 1159 in that tone, he must of necessity consent to adjourn.
§ Debate adjourned.