Commons Sitting of 7 February 1840

MINUTES.
Bill. Read a first time:—Stage Carriage (Ireland).
Petitions presented. By Mr. Grimsditch, from an Indivi-
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dual, against the Non-compliance with the Standing Orders in respect to the Hull Dock Bill.—By Mr. B. Wall, from West Tiverley, against the Doctrines of the Socialists.—By Mr. Compton, from West Deal, to the same effect.—By Mr. Beamish, from Cork, against the Tithe Commutation Act.—By Mr. Villiers, Lord Morpeth, and Mr. Dennistoun, from a number of places, for the Total at d Immediate Repeal of the Corn-laws.—By Mr. Baines, from a Parish in Suffolk, for the Abolition of Ecclesiastical Courts.—By Mr. Hume, from Marylebone, for Pardon to the Monmouth Prisoners.—By Mr. T. Duncombe, from a place in Essex, for the Release of John Thorogood, and the Abolition of Church Rates.

BOARD OF EDUCATION (IRELAND).
Mr. Sergeant Jacksonwished to put a question to the noble Secretary for Ireland, on a matter of deep interest and importance to the people of that country. He wanted to know whether any change had been made in the regulations under which the Board of Education made grants for schools, since the Committee of the House had sat upon the subject; and if a change had been made, he wanted to know what the nature of it was, and when it was made. He hoped that the noble Lord would give him a satisfactory answer, and save him from the necessity of asking the noble Lord some other questions?
Viscount Morpethsaid, that the only change which he knew of was one stated in the report of the Board of Education for 1838, which permitted the local committees and patrons of schools to set apart certain hours out of the regular hours for school instruction for the purpose of communicating religious instruction.
Mr. Sergeant Jacksonwished to be informed whether any change had been made in the queries formerly circulated by the Board among the applicants for schools; and whether, in those applications, it was necessary or not that the application should be the joint application of the clergy of different persuasions?
Viscount Morpethsaid, that the queries had never been publicly put forth in any document, but had always been regulated at the discretion of the board. A change had recently been made with respect to the queries. Instead of sending them to the applicants, they were sent by the board to the inspectors whom it had appointed, and by those inspectors they were now filled up. With regard to the applications, he did not know that there had been any alteration in the mode in which the aid must be asked for in order to be given. It was laid down in the letter of the noble Lord, who was the founder of

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those schools in Ireland, that preference should be given to those applications which came from clergymen of different persuasions. The grants, however, were not limited to such applications: they were frequently made in cases where the application came from one clergyman only.
Mr. Sergeant Jackson: Would the noble Lord answer him one question more? In the year 1833, the Synod of Ulster had publicly stated the terms on which alone it would receive aid from the Board of Education. Now, he wanted to know, whether there had not been recently a conference between the Board of Education, a deputation from the synod of Ulster, and the Lord-lieutenant of Ireland, and whether that conference had not terminated in an application for aid by the synod of Ulster? He also wanted to know whether that result had been brought about by the Synod of Ulster's abandoning its conditions of 1833, or by the board's abandoning its resolutions?
Viscount Morpethhad reason to believe that since his departure from Ireland, conferences had been held upon this subject between a deputation from the Synod of; Ulster and the Board of Education, and that at one of those conferences the Lord-lieutenant had been present. He had also reason to hope that the result of that conference would be the establishment of a perfectly good understanding between the Board of Education and the Synod of Ulster. But he did not understand that that good understanding either had arisen or would arise from any departure from the principles which either party had laid down. There had been a removal of misapprehensions, which he believed would ultimately be of great advantage to all parties.
Subject dropped.

POST-OFFICE ARRANGEMENTS.
Mr. Goulburnwished to ask the Chancellor of the Exchequer a question respecting the transmission of the votes and proceedings of that House to different parties. Had any arrangement been made by which the votes and bills of the House of Commons might be transmitted post free by Members to their constituents, and by their constituents back again to different Members?
The Chancellor of the Exchequerwas much obliged to the right hon. Gentleman for asking him this question. He
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had received within the last few days, through the kindness of the Speaker, a resolution of the Printing Committee, stating that whatever other arrangements might be made by the Post-office as to the transmission of Parliamentary documents, the bills and votes of the House at least ought to pass free of postage. With respect to the proposal of having a franking committee, he had a great objection to open the door again to the abuses of the franking system. He would impress on the House the propriety of not pushing that point, especially as it was easy to make an arrangement having the same effect in a practical form, and in another way. He proposed that this class of Parliamentary proceedings should be free of postage. He proposed that the same course should be adopted in the House of Commons with votes and bills as was adopted with the papers issued by and in the other public departments, namely, that the Post-office should make a charge for them against the department, and the department against the public. This would produce the same effect both to the sender and to the receiver, and would prevent the necessity of opening the door to that system of franking which had been found so full of abuses. If he should be given to understand that this arrangement met with the assent of the House, the Post-office would be instructed to enter into communication with the Speaker for the purpose of accomplishing it.

CREDITORS OF THE DUKE OF YORK.
Mr. Leaderwould now repeat the question which he had put on a former evening to the noble Secretary for the Colonies, by desire of several of his constituents, who were creditors of the late Duke of York. He wished to know whether the proceeds of the mines at Cape Breton, which had been decided to belong to the late Duke of York, were now applied to colonial purposes or to the liquidation of the debts of that illustrious personage?
Lord J. Russellwas understood to say, that the question whether the proceeds of these mines could be applied to the liquidation of the Duke of York's debts was still under litigation. As yet there had been no legal decision on the point in dispute. The only decision made was by the Colonial-office, that there should be reserved to the creditors of the Duke of York, if they could Drove his claim, the

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right to receive the proceeds of the mine. The lessees had at first declined to pay the proceeds to the colonial revenue, saying that they might hereafter be called upon to pay the same amount to the creditors of the Duke of York; but it had been decided by the Colonial-office that they should pay the proceeds to the colonial revenue, and be reimbursed by it in case the Duke of York's creditors succeeded.
Mr. Humewanted to know whether the noble Lord would have any objection to lay upon the table a copy of the original grant, by which these mines were granted from the public to the Duke of York, and under which they had been assigned to his creditors?
Lord J. Russellcould not answer that question, as the whole affair was now in progress of investigation in a court of law.

PRIVILEGE.—STOCKDALE v. HANSARD—THE SHERIFFS—ADJOURNED DEBATE.
Lord J. Russell Lord J. Russell moved the resumption of the debate respecting printed papers.
Sir E. Sugdensaid, that in arguing a question involving the jurisdiction of the House, the supremacy of the law, and the rights and liberties of the subject, he would endeavour to avoid saying anything that might give pain to any individual, or give rise to any feelings of discontent on the part of the minority of the House against the majority. He should endeavour to consider what were the rights of the Queen's subjects and of that House in the present case, without regarding whether it might please or displease the House, but in terms which he hoped would give offence to no man. Before he entered on the subject, as there had been some misapprehension as to what his own opinions on this point were, he wished to state explicitly his views. In the first place, speaking with great deference of the judges of the Court of Queen's Bench, he had always been of opinion that they were wrong on this particular point. It was, and had always been, his opinion, that this particular publication—he went no further—was a privileged publication, and therefore, that their decision ought to have been otherwise. But at the same time, the House would be aware, that that in no respect altered his view, for he took this ground, that the point came regularly under discussion, that the Court had to come to some determination on it, and whether they were right or wrong in their determination, was not the question before the
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House. As regarded the general question of the publication of the proceedings of the House, nobody could be more desirous than he was, to place it on a legal and proper foundation—and guard it by prudent and necessary limits. He thought, that in many cases, the House would be unable to execute its duties unless it should have the power of communicating its proceedings to the public at large. He should be found, therefore, a ready supporter of any separate measure, for giving to the House the extent of power necessary for that purpose. But he was compelled to say, that there were two or three conditions which he thought should accompany or precede it. One was, that the House should no longer sell at random or generally its publications, for he was quite sure, that the sale of papers, at present permitted, had caused great mischief. The other was, that whatever they did publish, they should use so much care and caution as not unnecessarily or wantonly, to injure any individual in the exercise of their right. He was prepared to go to this extent, that if it should be necessary in a given case, in the exercise of their rights, privileges, and duties as a Legislature, to communicate to the public their proceedings, although those proceedings should affect injuriously the rights of an individual, the rights of the individual ought to give way in the particular case to the general good. But they could not claim to injure the legal rights of any man except for the general good, and on terms and conditions in which the public at large were interested. With these few observations, he would draw the attention of the House to the grounds on which he submitted, that the sheriffs should now be discharged. He proposed to advert to some of the observations of his hon. and learned Friend the Solicitor-general, but he would first state why he thought, that the time was now come when the sheriffs might be discharged, without any abandonment by the majority of the House, of any opinion which they had maintained. He need not tell the House, that the time must and would arrive when the sheriffs must be discharged, and that it was only a question of time. Let the House bear in mind, that the law would discharge them, if they themselves did not, and therefore the only question was, whether or not the time had arrived? He must draw the attention of the House for a few moments to the nature of the proceedings upon which those Gentlemen had been committed. The House,

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he believed, had a good deal lost sight of the nature of the different proceedings. First, an action had been brought by Stockdale, which was tried at nisi prius before the Lord Chief Justice. There were two pleas; one of which went in bar, on account of the jurisdiction of the House, and was held by the Lord Chief Justice not to be good in law. The other plea was, that the libel was not proved, inasmuch as the book was obscene and indecent, and therefore, that the plaintiff could not recover. The verdict was against the plaintiff on that occasion, but the House had not thought fit to pursue it further, seeing that Stockdale had sued in formâ pauperis. Another action was brought, which the House had determined to defend. The only Member of the House who was consistent on this question, was the right hon. Baronet the Member for Tamworth, who had advised the House, when the resolution of 1837 was under discussion, not to enter an appearance to the action, but to employ their own powers to vindicate their own commitment. The Attorney-general and the hon. Member for Exeter, on the contrary, advised them to plead. A plea was put in, not to the jurisdiction, but in bar, in order to bring the matter regularly before the Court. The Attorney-general defended the action nominally as counsel for Hansard, but really as counsel for the House. After a full and elaborate argument, it was unanimously decided, that the House had not the privilege which they insisted on. What took place afterwards? Another action was brought; the House determined not to appear, and damages were filed against them as a matter of course. When no defence was entered to the action, it was not to be expected that the cause could be maintained. All authorities, constitutional and legal, laid it down, that even in cases where authority and privilege were possessed, a plea in bar must be entered, in order that it might be shown, that the officer had not abused the trust committed to him. In the first action they submitted to the judgment of the Lord Chief Justice on their privileges; in the second, they submitted to the judgment of four judges, and paid damages and costs; in the third action there was no defence, and therefore large damages were recovered. If the House would not maintain their own rights, how could they call on the sheriffs to maintain them? They put the poor sheriffs in the situation of the whipping-
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boys to great personages at school, who were flogged when the great personage committed a fault, in order to deter their superiors from the commission by fear of the painful infliction. They punished the sheriffs by way of intimidating the judges. Upon what ground of justice had the House made an order that the sheriffs should pay over to Messrs. Hansard the money which had been levied under an order of the Court of Queen's Bench? Upon the last application to the Court, the Lord Chief Justice justly observed, that the money in question belonged as much to the plaintiff in the case as the estate of any Member of the House belonged to him. He had put on the votes a notice of a motion to rescind that resolution, because in his humble opinion it was quite illegal. The House had no power to impose a fine on any of the Queen's subjects; that would not be disputed by any Member of the House. What they had not a power to do directly, they had not a power to do indirectly. He maintained, that to direct the sheriffs to pay to Mr. Hansard that money which the judges of the Queen's Bench said belonged to Stockdale was indirectly to impose a fine upon the sheriffs, just as much as if they had ordered the sheriffs to pay the money out of their own pockets. If they had paid the money according to the order of the House, the House had no means of indemnifying them against the consequences of doing so. He had abstained from holding the slightest communication with the sheriffs—indeed, he had not the honour of knowing them—but he had been told by an hon. Friend of his in the House, that the sheriffs had paid the money to Stockdale, in whose pocket it now was. He could only say, that they had done an act which it would have been well for them and for the House if they had done some months ago; and what had occurred in this case might be a lesson to them and to all men that it was better to take a decided course. Their fault had been that they wished to conciliate the House while following up the directions of the Court of Queen's Bench. Instead of paying the money over at once they had deferred it from week to week in order to avoid the necessity of coming into conflict with the House. If then they were compelled to refund it to Messrs. Hansard, they would be 600 l. out of pocket, and if that were so, the House would have indirectly imposed a fine on them. Those who thought with him that the sheriffs

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ought never to have been imprisoned would of course now vote for their release; those who thought the order for paying over the Money illegal would also do so; but others who thought the resolution legal, might be moved to take the same course by other considerations, In the first case, that collision and difficulty had arisen which he understood that many Members who had been in favour of the committal thought necessary before the House could recede from the step it had taken in committing the sheriffs. An attachment had issued from the Court to the coroner to attach the Sheriffs for non-payment of the money and the money had been paid. He Was sorry not to see the coroner in his place, for he Would have had an opportunity that did not very often occur to him of congratulating the hon. Gentleman in having escaped from a serious difficulty. If the sheriffs had paid the money to Mr. Hansard, and been let out of prison, the coroner would immediately have walked into Newgate by Authority of the Court of Queen's Bench, and the House Would have found itself just as powerless to release the coroner as the court now was to release the sheriffs. He put it to the House whether they would insist on their jurisdiction so far as to keep these gentlemen in prison. He knew the proceedings of the House had attracted the attention of foreign jurists. He called on the House and the country to consider what would be said by persons who did not understand the peculiar working of their powers. Could they make foreigners understand the subject? Why, we did not understand it ourselves, there was such a mist of complicated subtlety thrown over it. He defied anybody to understand it. The House came into collision with another court and nobody knew the grounds on which they came into collision. They had kept out of view on the face of the warrant, the cause for which they committed the sheriffs, and merely stated generally that they had been guilty of a contempt of the privileges of the House. The House had issued a general warrant of commitment, and he did not deny, that they had the power to do so, but he doubted very much whether they would long be able to maintain it. When the matter came before the Court, the Lord Chief Justice, seeing no cause stated on the face of the warrant, said, "How can we tell for what reason these prisoners are committed?" The learned judge also made an observation, with which the Attorney-general
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found fault, "that it was utterly impossible to suppose that a solemn court, committing a man would withdraw from the face of the warrant the cause of commitment in order that the courts of law might have no opportunity of deciding on it." He entertained that opinion, and believed that it prevailed extensively out of doors, as well as pervaded the great body of the bar and the bench. It would have been much more constitutional, manly, honourable, and straightforward to state the cause of commitment. There was no danger from general warrants in a case of this sort, but he feared that great danger might arise if they were to exercise the power in other matters. The House might wrest the power to worse purposes than it did at present. Suppose the House were to say that any crime or misdemeanour committed out of doors—manslaughter, for instance—was a breach of privilege. He regretted to see the noble Lord Opposite, who professed so much zeal for popular liberties, at the head of the party which advocated so dangerous a course. Now he wished the House to mark how the case really stood. The House, after declaring, that a man had committed a breath of privilege, proceeded to vote his committal to custody, and he stood committed accordingly, and no court in Westminster-hall could release him, when nothing further than a contempt appeared on the face of the warrant. Now, could there be any more odious tyranny than this, or any of which the people of this country had greater reason to be afraid? If the cause of the contempt appeared on the face of the warrant, then a court of law would inquire into its sufficiency, and release the man if it clearly appeared that no contempt had in fact been committed. That point had been particularly referred to in the Aylesbury case, in which it was declared, that if the warrant of commitment stated a cause of commitment which was illegal, that the court must do justice, and discharge the party unlawfully committed. He had seen out of doors a statement that the sheriffs were without excuse, because it was the known law of the country that if the sheriffs received an order from the court, he was bound to obey it, except when he received a counter-order from another court. A great parade of learning had been made upon this subject, and it was even stated that the decision of the Court of Queen's Bench oh the question of tie habeas corpus proved that the sheriffs were in the wrong.

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Now, Anything more grossly wrong in point of law than this he had never heard. He need only state, to show how much they were mistaken, that at this present moment there was an attachment out against the sheriffs from the Court of Queen's Bench, while the Sheriffs were also in the custody of the Sergeant-at-Arms for obeying the orders of the Court. The House of Commons had committed them to the custody of the Sergeant-at-Arms because hey had declined to pay over the money to Messrs. Hansard, and the Court of Queen's Bench attached them for not paying it over to Stockdale. This was one clear ground for their discharge. But there was another ground for their release. The sheriffs had been committed by the House to the custody of the Sergeant-at-Arms, because they had Obeyed the orders of the Court of Queen's Bench. Now, since that time, the House Itself had obeyed the order of that Court, in making a return to the writ of habeas corpus. He asked them, then, whether they would play with the court in this manner, taking the Queen's writ in one hand, and the sheriffs in the other, and yet, at the same time, imprisoning the sheriffs for yielding the same obedience to the Court which the House had itself paid. He would further remind the House, that if, upon the return to the writ of habeas corpus, the Court of Queen's Bench had ordered the release of the sheriffs, it would have been utterly beyond the power of the House to remedy what had been dune. What they were now performing would be history. These things would be read of hereafter by thousands and tens of thousands, who would consider mildly and calmly the Course which the House was now pursuing. The Solicitor-general had told the House, that if the sheriffs obeyed the House, the House would protect the Sheriffs. Bat what did this protection amount to? Why, it came to this—that if the tipstaff of the Court of Queen's Bench took the sheriffs into custody, then the Sergeant-at-Arms would be directed to take the tipstaff. Practically speaking, the House could only execute its orders by force: and what would be the result of force? It was historically known, that on a similar Occasion, five or six Members of the House were named, who undertook to storm Newgate, and set somebody confined within its walls at liberty, which insane project would actually have been carried into execution, if the Speaker had not suggested that it was Worthy of consideration
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whether the gentlemen might not make themselves liable to an action on the case, which words, "action on the case," so alarmed the gentlemen in question that they gave up the attempt for which they had volunteered, and nothing further was heard on the matter. The noble Lord would hot act calmly, if in deciding upon this matter he allowed himself to be influenced by any strong language which might be contained in any petitions which had been presented on the subject of the imprisonment of the sheriffs. Strong language might have been used in the petition presented from the city, but the House must expect this. He could not help alluding to the petition Which he had had the honour to present, signed by 599 members of the bar, 27 of whom were Queen's counsel and Sergeants. There never was a petition addressed to that House which better deserved attention than this, both on account of the temperate nature of the language employed, and the respectability and learning of the parties by whom it was signed. The petition also of the Common hall, which had been presented that day, contained no offensive expression. The question now arose, if the House was not now prepared to release the sheriffs, when would the time arrive? The money, as he was informed, had already been paid to Stockdale, and he was glad of it. The House would thus be relieved from much difficulty, and no question could arise, respecting any conduct which the coroner might think proper to pursue. Now, his hon. and learned Friend, the Solicitor-general said, that the sheriffs ought never to be released till they had paid the money to Messrs. Hansard; but the sheriffs had paid the money to Stockdale. Would the House keep them in confinement till they had paid the money out of their own pockets? The Solicitor-general carried the matter so far, that he proposed that the House should address the Crown, and pray the Crown not to prorogue the Parliament. Worse advice never was tendered. Anything more untenable could hardly be conceived, and he deeply regretted that his hon. and learned Friend, in the first speech which he had made after taking office, should have made a speech which ill became an officer of the Crown who might have to prosecute the parties. In a speech of his nature there should be used mildness, and temper, and moderation.—[A laugh.] He understood that laugh; those who laughed thought there should not, and if so, they must

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be delighted with the Solicitor-general. There was no mildness, no temper, no moderation in his speech. He never heard a speech with greater regret in his life than that of his hon. and learned Friend, and he knew not why he should not say so. Then, again, there was the hon. and learned Gentleman, the Attorney-general, who treated the sufferings of the sheriffs so lightly; he certainly could not congratulate the noble Lord on his assessors. But the Solicitor-general said, "act on your own powers," and then followed this lamentable inconsistency—"Address the Crown, throw yourselves on the Crown, and be at the mercy of the Crown for the vindication of your privileges." All this was very well; but suppose Queen Victoria should deliver such an answer to such an address as Queen Anne did when she was addressed by the House of Commons not to issue a writ of error in the Aylesbury case. The answer of Queen Anne was this—
"Her Majesty is much troubled to find the House of Commons of opinion that her granting the writs of error is against their privileges, of which she will always be as tender as of her own prerogative, and therefore the House of Commons may depend Her Majesty will not do anything to give them any just cause of complaint."
So far so good; but let the House mark what followed—
"But this matter, relating to the course of judicial proceedings, being of the highest importance, Her Majesty thinks it necessary to weigh and consider very carefully what may be proper for her to do in a matter of so great concern."
With this reply the House of Commons was so displeased that they returned no answer. But what did the House of Lords do? They also presented an address to the Crown, which was drawn by Lord Somers, for whom the noble Lord might feel some respect, in which the Lords said, that it would not be just not to grant the writs of error. The Queen's answer was as follows:—
"My Lords, I should have granted the writs of error in this address, but finding an absolute necessity of putting an immediate end to this session, I am sensible there would have been no further proceedings upon that matter."
And the Lords thanked her Majesty for that gracious answer. In what a position, then, might not the House be placed if they followed the advice of the Solicitor-General. It had been said, that the
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sheriffs had acted improperly, but the Court of Queen's Bench said, that they had acted very properly. The Lord Chief Justice said, "the sheriffs had certainly conducted themselves in a way that did them great honour, and had, as all persons were bound to do, endured patiently the distressing circumstances in which they had been placed by their obedience to the law of the land, which law it was the province of that court to declare." The Solicitor-General had said, that it was an insult to that House to mention the oath by which the sheriffs were bound. He was free to confess, that the sheriffs would have committed no breach of their oath if they had declined to pay in consequence of orders from a higher tribunal. But that was the very point in dispute. They must obey the court of law, if the court was right, and disobey the House, if the House was wrong; and at present there was a conflict between the two jurisdictions. He thought that the oath taken by the sheriffs did not prevent their obeying the order of the House, if the House had the power of issuing it; but this was denied. The present case was entirely different from cases arising on the law of arrest to which it had been compared—there was no analogy between them. This was a case on which the deliberate opinion of a court of law had been given, and that opinion was, that the House had not the power to enforce the order which it had issued. The question was not whether the sheriffs would break their oath by obeying the order of that House, but whether they believed themselves bound to obey the Court of Queen's Bench according to their oath? It was clear that they could obey but one, either that House or the Court of Queen's Bench. But which were they bound to obey? Did not their oath bind them to obey the Court of Queen's Bench? But who told them that they were bound by their oaths? The judges of the Court of Queen's Bench; and could they have a greater authority than that of the judges of the court, whose ministers they were? Upon all those grounds he would humbly submit to the House, that the time had arrived when the sheriffs ought to be released. He believed, that the longer they detained the sheriffs, the greater would be the difficulties in which they would find themselves entangled. He deeply felt the situation in which the House now stood; and he hoped that those Gentlemen who had held the opinion that it was right to commit the

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sheriffs would now think it right to release them. He thought he should not do his duty on the present occasion if he did not show that the Solicitor-general had formed very incorrect arguments upon the authorities he had adduced, and that if the House were to follow the advice tendered by the hon. and learned Gentleman, it would find itself in much greater difficulties than it was even at that moment. The Solicitor-general had said, that the House was bound to support the resolutions of 1837, and that he himself was ready to do so. He had said to the House, "Support your jurisdiction against the jurisdiction of the courts of common law and of the House of Lords. You must maintain your jurisdiction by force and coercion if necessary against the judicial authorities of the land." So, then, they were to oppose the House of Lords, the Court of Queen's Bench, and every authority in the land. It was very singular that the hon. and learned Gentleman had desired the House to support those resolutions of 1837, there not being a single authority in the House who had not discarded and repudiated them. There was not a constitutional opinion in the country that was not directly against them. If they could be maintained, there was an end to the liberties of the country. Certainly that must be the case if they maintained that they had the power of deciding their own privileges, and that no court or tribunal in the country had a right to interfere with them. He would show the House, that the pretensions which had been set forth in former days, which had been referred to, were entirely unfounded. It was said, that they might punish the officer if they pleased; and so they might. Sir Thomas Meere said, 130 years ago,
"Well, but we can punish the officer, and in that there is revenge; and that is a sweet bit, and some satisfaction."
He trusted that his name, humble as it was, would never be transmitted to the knowledge of posterity, coupled with any such wish having been expressed by him. He disclaimed any participation in the course which the Solicitor-general had recommended. It was the hon. and learned Gentleman's own bantling; he had fondled and nursed it with great attention, but he would never be able to bring it to maturity. The resolutions of 1837 would die a natural death: they were dead. Yet there was nothing to fear, for the House
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and its proper privileges would survive the bereavement. His hon. and learned Friend, the Attorney-general had given up those resolutions long ago. Ever since his hon. and learned Friend advised the House to plead in the case of "Stockdale and Hansard," he had abandoned the resolutions. What was the meaning of those resolutions? Why, that whatever the House thought proper to declare to be privilege must be privilege. But his hon. and learned Friend, the Attorney-general gave them up, and against the remonstrance of the right hon. Baronet, the Member for Tamworth, and other hon. Members, he maintained that the right and proper course to be pursued was to plead. The House could not maintain the resolutions of 1837; the Attorney-general knew it, and the Solicitor-general was left by himself to do so. Those resolutions had struck a severer blow at the liberties of the country than any one act which had been done since the days of the Long Parliament. The Solicitor-general had said—"Oppose the House of Lords and the judges of the land, and I will show you that success must attend you, as it always has attended you." Now, he would show that the Solicitor-general was entirely mistaken when he told them that they must succeed if they followed his advice, and continued to oppose the judges and the House of Lords as a judicial tribunal. He would show that success never had attended that course, but that the House had always been forced to give way, and give way it ever must. Having shown that, he would leave the House to judge whether the time had not arrived when, by administering justice with mercy, if they would so have it, they ought to release the sheriffs. The hon. and learned Gentleman had said, "If you trust to the judges at all, your power is gone; you will no longer maintain your privileges." The hon. and learned Gentleman had been endeavouring to inflame the minds of hon. Members by reminding them of the days of Judge Jefferies, and of the doings of bad judges of other times, taking care, of course, to pass a compliment upon the present judges. The judges of past days were wicked and execrable, and perhaps future judges might be worse, but the present were, of course, most excellent and able. The hon. and learned Gentleman had said it was not a fair argument to go from the use of a thing to the abuse of it. That was true, and if, he were to dwell on the mistakes of former Parliaments, if he were to

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dwell upon the conduct of the Long Parliaments, what would the hon. and learned Gentleman say of the abuse of the powers of the House? He was ready to admit that the House, as well as all other human tribunals, might and must err; but he did not mean to say that it always erred. The resolutions of 1837, he maintained, were erroneous, and it would be erroneous to attempt to enforce them. But, in fact, they were destroyed the moment the Attorney-general went on with this case. Suppose they had gone to the House of Lords upon this question? Why should they not? That House would have tried it as a judicial question. Their lives, their properties, and everything depended ultimately on that House, and why should they be afraid to trust this question with the Lords? There could be no fear that they would act improperly, because the privileges of the Commons, were equally the privileges of the Lords. If, therefore, they could have a favourable tribunal, it must be the House of Lords, who would participate in all their privileges, and there could not be stronger ground. If the House of Lords were to decide against the privileges of the Commons, they would decide against their own at the same time. But if they followed the advice of the Solicitor-general, so far from being successful, they would ultimately be defeated by the excessive use of the privileges which they claimed. What success had attended them hitherto? In the first action in this case, though the verdict was for the defendant, they were defeated in point of fact; in the second action, privilege was pleaded, but demurred to, and the verdict was for the plaintiff; and in the third action judgment was suffered to go by default, and damages were awarded to the plaintiff. Now, all the success they had was this—they had got the sheriffs of London and Middlesex in the custody of their officer, and the money was at that moment in the pocket of the plaintiff Stockdale, from whom they would never recover it. He begged now to draw the attention of the House to the great case of "Ashby v. White." An action was brought by Ashby against the returning officer for not allowing him to vote at an election. It was decided by three judges against Lord Chief Justice Holt, that the action did not lie. A writ of error took the question before the House of Lords, and that House decided, by a large majority that an action did lie. Five of
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the judges were of opinion that the action did, and four that it did not, lie, and two judges were absent. A few days after the decision of the House of Lords, the attention of the House of Commons was called to the subject. The Commons looked with alarm at the interference of the Lords with what they considered to be under its sole jurisdiction. On looking into the debates of that period he found that the Speaker was against the privilege claimed by the House. So also were Sir John Hawkes, who was Solicitor-general in the time of William 3rd, the Marquis of Hartington, afterwards Duke of Devonshire, Sir Joseph Jekyll, afterwards Master of the Rolls; Mr. Dormer, afterwards Mr. Justice Dormer, Mr. Cowper, afterwards Earl Cowper and Lord Chancellor, Mr. King, afterwards Lord King and Lord Chancellor, Sir Thomas Littleton, and Mr. afterwards Sir Robert Walpole. The whole of those eminent persons spoke against the assumed jurisdiction of the House of Commons. The decision of the House of Lords was given on the 14th of January, 1704, and the House of Commons on the 17th passed the following resolutions:—
"Resolved,—First, that Ashby in commencing and prosecuting his action has been guilty of a breach of privilege. Resolved secondly,—That whoever shall presume to commence any such action or other proceeding and all other attornies, solicitors, counsellors, and sergeants-at-law, soliciting, prosecuting, or pleading, in any such case, are guilty of a high breach of the privileges of this House; and that these resolutions be fixed upon the gate of Westminster-hall."
The attention of the Lords was soon called to these resolutions, and they drew up a report upon the subject. In that report they set forth what was well worthy of the consideration of the noble Lord the Colonial Secretary, and the Solicitor-general. They set forth a case in which the House of Commons had itself appealed to the House of Lords in order to protect its privileges by the judgment of that House. They set forth the decision in a court of common law against Sir John Eliot and others, for words spoken, heavy fines being imposed upon them. In 1640 the House of Commons resolved that it was a breach of privilege, and against the law and privilege of Parliament; but after the restoration, the House of Commons desired to place the matter upon a surer foundation as they could not think the great privilege of speech safe, whilst so solemn a judg-

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ment continued in Force. Therefore, in 1667, they resolved that the judgment was illegal. But, not being satisfied with their own authority in that respect, they prayed a conference with the Lords, and their Lordships' concurrence in their resolution. That conference was had and the Lords, as it was stated, at the desire of the Commons, directed a writ of error to be brought into Parliament, to the end that there might be a judicial determination of that great point, which was done accordingly, and on the 15th of September, 1668, the House of Lords reversed the decision of the court below, to the great satisfaction of the House of Commons. But upon this report, they resolved in the case of "Ashby v. White":—
"1. That the action could be maintained. 2. That the declaring Ashby guilty of a breach of the privileges of the House of Commons, for prosecuting his action after he had in the known and proper methods of law, obtained a judgment in Parliament for the recovery of his damages, was an unprecedented attempt upon the judicature of Parliament, add was in effect to subject the laws of England to the votes of the House of Commons. 3. That the deterring electors from prosecuting actions in the ordinary course of law, and terrifying attornies, solicitors, counsellors, and sergeants-at-law from soliciting, prosecuting, and pleading in such cases, by voting their so doing a breach of the privileges of the House of Commons, is a manifest assuming to control the law, to hinder the course of justice, and subject the property of Englishmen to the arbitrary votes of the House of Commons."
The next step was that after the Session, Ashby took out an execution on his judgment, and recovered his damages; and after the House was prorogued five other persons brought five new actions by the same attorney. In the next Session, the House of Commons resolved:—
"That all the parties had been guilty of a breach of privilege in bringing their action contrary to their declaration, in high contempt of the jurisdiction, and in breach of the known privileges of this House."
The like resolution was passed with regard to the attorney who brought the several actions. The House then sent all the five plaintiffs to Newgate, and the attorney was committed to the custody of the Sergeant-at-arms. Writs of habeas corpus were obtained, and the five plain tiffs were brought before the Court of King's Bench, but the court remanded them as it had done in the present case, being of opinion that the court had no power to review
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committals made by that House. The House of Commons began to be alarmed about the custody of their prisoners; unlike the noble Lord, who first committed men to the custody of the Sergeant-at-arms, and then to Newgate, they having first sent them to Newgate, removed them to the custody of the Sergeant-at-arms in the middle of the night. Lord Somers, who was no mean authority, said, that removal was made with an aggravation of circumstances which was much to be deplored. The next step of the Lords was to grant to the counsel and attornies of the prisoners the protection and privilege of the House, and prohibited all sergeants-at-arms and others from arresting or detaining them. But the Commons did arrest one of the counsel, and shortly afterwards another. These learned persons sued out writs of error before the Lord Keeper. The House of Lords then entered upon new resolutions:—
"That neither House of Parliament hath any power by any vote or declaration to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament."
Now, that was rather an inconvenient resolution to place in juxta position with the resolutions of 1837; the one was legal, the other illegal; the one was constitutional, and the other unconstitutional. The House of Lords further resolved:—
"That the House of Commons, in committing the plaintiffs to Newgate upon pretence that their conduct was contrary to a declaration of that House, a contempt of their jurisdiction, and a breach of the privileges of the House of Commons, have assumed to themselves alone a legislative power, by pretending to attribute the force of a law to their declaration, have claimed a jurisdiction not warranted by the constitution, and have assumed a new privilege to which they can show no title, and have thereby, as far as in them lies, subjected the rights of Englishmen and the freedom of their persons, to the arbitrary votes of the House of Commons."
Another conference with the Lords toot place, after which the House of Commons resolved,
"1. That no commoner of England committed by the House of Commons for breach of privilege, or contempt of the House, ought to be by any writ of habeas corpus made to appear in any other place or before any other judicature during that Session of Parliament wherein such person was so committed. 2. That the Sergeant-at-arms do make no return of, or yield any obedience to, the writs of

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habeas corpus, and for such his refusal he have the protection of the House of Commons. 3. That the Lord Keeper be made acquainted with these resolutions, that he may supersede the writs."
Those were rather strong resolutions. Even the Solicitor-general himself did not go so far as that. It was true, that in Lord Shaftesbury's case, the House of Lords did actually rescind its own resolutions; but that did not affect his present argument. Parliament was prorogued, and then dissolved. What was the result? In every one of those actions the plaintiffs recovered the damages and costs, and put them into their pockets, and set the House at defiance. From that moment to this, the House had never resumed its jurisdiction; there was no case in which that point had been raised. He was not then talking of Polack's case. The law of that case was left to the House of Lords. The case of "Ashby v. White" was to this day the law of this country in point of principle, and must remain so until reversed. It never had been reversed yet, and, therefore, it must be taken as the existing law. What did he infer from that? He was showing that they had not the power, and could not maintain the power, which they had assumed: and furthermore, that when the Solicitor-general told them that success would attend the course they took, he told them that which was incorrect. True, success had attended them in some cases, as in that of "Burdett and Abbott," but not by committing parties into the custody of the Sergeant-at-Arms, but by going to the courts of law, and submitting to the adjudication, As they were right, the courts decided in their favour; and the hon. and learned Gentleman would go into a court of law now, if he knew that court would decide for him, but never while he fancied it would be against him. Prudence enough was exercised in the course which had been pursued. The warrant was prudently kept out of court. They kept from the knowledge of the court the ground of committal, for fear the court, knowing it, should order the release of their prisoners. That fact was concealed which the Attorney-general had told the House would be a vindication of the conduct of the sheriffs, and a ground upon which the Court of Queen's Bench would order their liberation. They might have a strong case in point of law, but not in point of justice. Now, suppose Stockdale were to bring an action, which he would, no doubt, in the vacation, against
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the Serjeant-at-Arms for false imprisonment. He knew what they would do. They would act prudently. They would go and plead in bar, because they knew it would be a good plea. They would submit to the court, because it would be prudent so to do, knowing that the court would decide for them. But if they thought the court would be against them, they would not go to that court. But was that a proper course for the House to pursue? Was it right that the country should on one day see them committing men into the custody of their officer when they knew the court would be against them, and on another day going for defence to the authority of that court, because they knew that it must relieve them? Was that a course in which the country could support them? Could they themselves approve of it? He hoped not. He should be sorry if they did. He had some doubts whether what had taken place in that House on this subject was not calculated very much to impede the course of justice in the courts of common law. He felt inclined to ask an hon. Gentleman whom he saw opposite, and who was connected with the disturbed district, whether what took place in that House was at all likely to increase the respect of the discontented for that House? Could the people one day hear the Attorney-general talk of the weight and importance of the law, of the high character and gravity of the judges, and that they might safely place their lives and liberties in the hands of those judges, and on the next day hear the same Attorney-general in that House contemning the jurisdiction of those very judges, and deriding them? Such a course could not be advantageous either to the House itself, or to the authority of the law. The hon. and learned Gentleman had spoken of the Court of Queen's Bench outraging the law, and sending sheriff after sheriff to Newgate. The court would not outrage the law by compelling obedience to the law. The oaths of the judges compelled them to do so; they could have no election. But that House was not bound to take such a course by any oath. The House ought, and might constitutionally, support its privileges; but it must not go against the law. They must look to some other mode of enforcing them. He implored them to release the sheriffs. That was a step which he besought them to take for the sake of policy, expediency, justice, public opinion, and the peace of the country. Upon all these grounds he implored the noble Lord to set a noble ex-

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ample, and agree to release the sheriffs at once. The House was that evening to adjourn to Tuesday for the purpose of joining in the festivities which were to take place on Monday, and of which, no doubt, every subject of this realm would partake with unfeigned pleasure. Was it desirable that upon such an occasion, the sheriffs of the city of London should be absent from the festive board of the great civic body to which they belonged? He had no wish to deprive the noble Lord of the grace appertaining to a proposal for the liberation of the sheriffs upon that ground. He had endeavoured to address the House in a temper which he hoped was suited to such an occasion, and he trusted that whatever discussion might ensue would be carried on in the spirit which he had aimed at maintaining, and he should by no means wish to press the noble Lord with respect to the ground of liberation to which he had just adverted, but he could not help noticing it, and he could not help saying, that he thought it well worthy of attentive consideration.
The Lord-Advocate* stated, that he felt some difficulty in rising to address the House, in reply to the able speech of the right hon. Gentleman; but he trusted that the House would extend its indulgence to him, and allow him shortly to explain the grounds on which he had arrived at, directly the contrary conclusion to that of the right hon. Gentleman. Before he proceeded further, he hoped that he should be allowed to state, that it had been a matter of great gratification to his mind to listen, a few nights ago, to the very learned and eloquent speech of his learned Friend, the Member for Exeter, who did not hesitate to say, that it was not possible the judgment of the Court of Queen's Bench, on the question of privilege, could be maintained. So clearly and distinctly did he think on this point, that he advised the House to agree to appear in court to the next action, and to plead its privileges; and if this plea were not allowed, in the Court of Queen's Bench, he recommended that it should go to the other judges in the Exchequer Chamber; and if this failed, to appeal, in the last instance, to the House of Lords; and he stated that he was satisfied, that at length their un-
* From an inability to hear the noble Lord, our report is but a sketch of a speech which was much and repeatedly cheered by the House.
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doubted privilege of the right of publication would be allowed, and thus the privileges of the House vindicated. He trusted that the authority of his learned Friend would not induce the House to pursue such a perilous course. His hon. Friend admitted that the privileges originally belonged to us by the law of Parliament, and therefore, by the law of the land. He also found, that on the question of publication, the right hon. and learned Gentleman opposite, observed, that if the Court of Queen's Bench disallowed their privilege on this particular point, they must devise some means of protecting it, for he thought that it was just, and must be maintained. The right hon. Gentleman even went further, and made use of a strong argument on this question of privilege, for he said, that if in a warrant of commitment by the House, they stated in the face of it the particular cause and grounds of committal, and declared that such offence was declared and held by that House to be a breach of its privileges, that he would maintain that the court was bound to observe these privileges, and that it must be regarded as sufficient. He could hardly require a more clear and distinct acknowledgment of those privileges than this of the right hon. Gentleman. He should not go into the question as to the grounds on which the exercise of their privilege rested in this case, as the House must be acquainted with it, for it was not only determined by a great majority last year, but on several occasions during the present Session, such, for instance, in the proceedings previous to the committal of Mr. Stockdale; again, previous to the reprimand of Mr. Howard; again, previous to the committal of the sheriffs; and even yesterday, on the question of the committal of Mr. Howard; he would, therefore, not go over the grounds, but should assume, that the House was in possession of the details of the question of privilege. Independent of this, it was held by one of the most learned judges this country has produced, that Parliament, before its separation into two Houses, held all the privileges essential to the due discharge of their functions; and when it separated into two Houses, each took from the common stock all their rights and powers which were deemed necessary, and without which their common duties could not be performed. Among other things it was considered essential that they should have the privilege of publication, without which their duties

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could never be satifactorily or usefully performed; and not only to themselves, it was essential to their constituents and the country at large, that they should have such papers of that House as it deemed necessary. Another question was, whether that House was not a court of original jurisdiction to determine on all cases that came before it. And here he must remark, that this part of the case had been left altogether untouched by the right hon. Gentleman; and be it remarked, that this was a chief part of the case to justify the whole of their privileges and their present proceedings. But in the outset he would correct the right hon. Gentleman as to the resolutions of 1837, although he admitted that they were not altogether drawn in the terms which he should have preferred; but in substance, they so far as was necessary, guarded the leading privileges that belonged to that House, as a court of original jurisdiction, and declared, that the House alone could adjudicate upon the question of its own privileges, and that this right could not be abandoned, but was as essential to them as their own privileges. It was, then, not an abandonment of this right when it amounted to the plea being put in to the action in the Court of Queen's Bench, as was clearly shown, a few nights ago, by his hon. and learned Friend, the Member for Newark, and as was also proved at great length in the learned and able argument of his hon. and learned Friend, the Member for Edinburgh before the Court of Queen's Bench. The right of adjudication was one of their privileges, it was one of their exclusive rights, and the House did not, in any case, allow this matter to be determined in a court of common law, but it must be decided by the Court of Parliament, according to the law of Parliament, of which the courts of common law had no cognizance. It was, therefore, impossible that, by allowing a plea of their privileges to be pleaded in a court below, they allowed the privileges themselves to be investigated or called in question. It was clear that the law of Parliament could only be known to Parliament; and the law of Parliament was just as much the law of the land as the law of equity, the law of the Admiralty Court, and the ecclesiastical law in the Consistorial and other courts. These were all independent of the common law, and were administered quite distinct, and independent of the Court of Queen's Bench and the other common law courts. All these originally formed the law of the
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land, and each particular branch Was independent of the other. The courts of law, then, could not know any thing about them, or determine upon any thing as a breach of the privileges of Parliament, and it was a great and essential principle that that House should have the exclusive right of interpreting what was the law of Parliament as regarded itself. Again, the courts of law could not possibly be acquainted with their privileges, as they could not know what was necessary for the discharge of its functions. It was possible that men might draw knowledge from books as to the law of Parliament—these might be either judges or persons who were not judges—they might be more or less learned in the law of Parliament, but this did not enable them to know what the exigencies of the Parliament were, and what was essential to its privileges, for that was a point which Parliament itself alone could determine. What other body shall know what is essential to Parliament in its legislative, its judicial, or its counselling capacity? who else shall know and determine what privilege is necessary for it as regarded their constituents? who else shall know what privilege was necessary for it as the great inquest of the nation? who else shall know and determine what privileges were necessary for the discharge of its functions but Parliament itself? and what other body could determine as to the use and practice of their privileges? But they would put all the privileges of the Parliament in jeopardy by admitting that, by allowing a plea of their privileges to be used in a court of common law, they allowed any individual to question them. If you once allow them to be questioned before a court of justice you may be drawn at length before the House of Lords, and may thus injure your privileges as a co-ordinate branch of the Legislature. And let the House take care, that it did not suffer in the struggle; but as respects many privileges of both Houses of Parliament, the other House might wish to preserve what was common and equally necessary for both; but this House required other privileges, having duties, functions, and powers different from the House of Lords, as well as those common to both. On this subject nothing was more essential than this privilege of publication; for that House, as the representatives of the people, and drawing their powers from popular constituencies, were engaged in essential and important inquiries as the great inquisition of the nation,

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and, therefore, in this, as in other cases, the privileges of this House were hot identical with the privileges of the House of Lords. There was another point—there was a resolution made by that House at the commencement of each Session, that it was a high breach of the privileges of that House for any Peer to take part in any election of Members to that House. Now the House of Lords, if called upon to interpret the law of Parliament, would never allow this to be a breach of this law. The House of Lords would not regard this question of publication as a breach of privilege, as that House would do; therefore the House would not willingly allow a question of this kind to be referred to that House; but you would be compelled to do so if you submitted the question of privilege to a court of law, and appealed, as suggested. By pursuing the course proposed by his hon. and learned Friend, the jurisdiction of that House would be brought under the cognizance of the House of Lords, which they must recollect was, as it were, a rival branch of the Legislature, and they looked at least with jealousy at the situation in which their privileges would be placed, and they must acknowledge that it would be one of considerable danger. Was it then admitted, that the House had the power of adjudicating on Questions regarding its own privileges? It was admitted once by the right horn Gentleman that the publication of papers, not only for its own Members, but for the country generally, Was essential. When, therefore, his learned Friend admitted that in a case of privilege, the Court of Queen's Bench had given a bad adjudication, ought not that House to consider it as nothing, but work by its own light, and not hand over the determination of its privileges to any court? There might be cases in which the question of privilege might be incidentally raised in the Court of Queen's Bench, had the court, in order to endeavour to extend its jurisdiction, might proceed to consider what was the law of Parliament, and also how it was administered. This was a question in which no ambiguity should be left, and we point should be left on which it might be said that Parliament had given no decision; and this part of the law of Parliament was one upon which there could be no mistake, for in that identical case of Stockdale v. Hansard, the House had come to specific resolutions, and declared their privilege of publication, and that the proceedings in this case had been a breach of the privileges of Parliament. He regretted the language that had been used both within
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and without that House on this Subject. The hon. Member for Oxford stated, that the proceedings of that House had been sanctioned by a tyrant majority, because the sheriffs determined to execute a writ, and because they levied money upon the servant of the House, and when ordered to pay it over, they withheld it. The House had committed the sheriffs for refusing to obey its orders, and it could not now liberate them. He wished the House and the Country to consider against whom this charge of tyranny and oppression was brought; for his own part, he had no hesitation in saying that if any person was guilty of tyranny, it was the courts of law, and not the Houses It was always held a good execution of the writ in the courts of law that it was not to be executed against privileged persons. The sheriffs took an oath to execute all writs directed to them, but not against persons privileged by the law of the land. The courts had repeatedly admitted the plea of privilege when attempts were made to attach the sheriffs for not executing writs. There was a remarkable instance of this in the case of Kensington Palace, when the Court of Queen's Bench held it to be a good excuse for the sheriffs not Serving the writ that they would be liable to proceedings against them before the Board of Green Cloth if they executed a writ in a royal residences. All the judges held this to be a valid excuse because the law was declaratory and directed that the sheriffs should not execute writs against privileged persons. The sheriffs had, in this instance, been prevented from executing the writ directed to them by the order of the House of Commons, according to the law of Parliament, and that was part and parcel of the law of the land. Was any suitor entitled to say that they should go in and execute that writ at their peril—he would say legal peril? He could perfectly understand that argument, if the legality of the orders of that House could be disputed; if a court bf common law could with propriety overrule their judgment in questions of privilege, and say that they had decided improperly. But if that could not be the real state of the question—if by the law of parliament, being part of the law of the land, the order of the House was legal, and the Court of Queen's Bench had no right to reverse or challenge those orders, and that by one of those orders the sheriffs were prevented from executing the writ directed to them would not that be sufficient excuse for them? If the result in the former case were admitted, why should it not be allowed

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in the latter? It was said that if it were part and parcel of the law of the land, then it was brought under the jurisdiction of the Court of Queen's Bench; but then it was also said, it should not be part and parcel of the law of the land, if the courts were unable to enforce it [Hear, hear.] Who were the sheriffs? They were not the officers of this House, though they were officers in a situation eminently entitling them to protection, because, as he understood, they were officers not serving by their own choice, but by direction. They were the officers of the Court of Queen's Bench. They were now in a situation in which they could not execute the writ directed to them, and from which situation the Queen's Bench could not extricate them. Suppose that the sheriffs and all the under-sheriffs were attached, as they might be, by an order of this House, and they said to the Court of Queen's Bench, "We are in prison, relieve us from this difficulty and embarrassment," the Court of Queen's Bench could only answer that demand by saying they could not give them any protection, they could not release them from that embarrassment. If such a question were to arise in Scotland, and it might arise there, that a person charged with the execution of a writ of a court should be prevented from executing that writ by an order of the House of Commons, and which had been decided obligatory as to a question of privilege, he should give his most confident opinion that the officers of the court, not executing a writ under such circumstances, could not be made responsible to a court, who could not say "We cannot give you protection from the responsibility of executing it." If the courts in all other cases, such as warrants, &c., allowed the orders of Parliament to be binding, in justice they were bound to do so in this instance. They had been told a great deal about the sheriffs; they were now at hand, and were ordered by the House to pay the money, not to Stockdale, but to Hansard; they had the money in their hands when they received that order. He would say, that in not obeying that order they had committed a breach of privilege; they were guilty, he must use the word, strong as it was, of an act of contumacy against the House. They had not only not obeyed the order, but having the money in their hands, they had contumaciously disobeyed it. They had no petition from the sheriffs throwing themselves on the indulgence of the House, stating the circumstances in which they were placed, and claiming the
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commiseration of the House in their condition. And yet the House was called on to release persons guilty of acts of contumacy towards them on the interference of third persons who stated that the House acted with double oppression. Moreover, whilst those persons had not petitioned that House, they had, as he saw by the proceedings of the other House, presented a petition to that House, and called for the interference of that branch of the Legislature. If they might believe what was reported as taking place in the other House, they were told that that House could not interfere here, although there might be a prospect of relief if the question ultimately came before them in their appellate jurisdiction. They had been blamed for the course they had taken in granting a general warrant, without expressing the particular cause which formed the breach of privilege and strangely blamed, he thought, by the right hon. and learned Member for Ripon, who admitted that even if the particular cause had been expressed, the prisoners could have been equally remanded. That they had privileges, to which the courts of law had no objection, had been perfectly admitted; for instance, the privilege against the personal arrest of Members, and many cases on that point, such as "Burdett v. Abbott," might be cited. They were satisfied that those privileges existed, and, as it would appear, on clear and unanswerable grounds; and yet a court of common law had chosen to overrule them though decided on by that House, so that they were now compelled to resort to those means which the constitution gave them to mark out and vindicate them. The powers of this House might be imperfect, because they had not the powers of the House of Lords or the Court of Chancery to impose perpetual imprisonment: but because their powers were imperfect were they not to exercise them? If a person were strong, he might afford to restrain his power, but if he were weak, he must do all he could, and omit no occasion for using the strength he possessed. He would say that the House ought not to liberate the sheriffs, who had been guilty of contumacy, but that they should continue to go on in the course of detaining those gentlemen on the same ground on which they had arrested them. He was sorry to have detained the House so long, but he felt that on a question of this kind, he should receive the indulgence of the House if he ventured to state the grounds on which he came to a conclusion directly opposite to that of the right hon. Member for Ripon, that the

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House ought not to release the sheriffs until they had received the utmost satisfaction.
Sir F. Pollocksaid, that, after the broad allusions which had been made to him the other night by his learned Friend, the Solicitor-general, he thought that the House would consider he owed them an apology if he did not address them on this subject; and that he should be charged with want of manliness if he did not now state his opinion distinctly and broadly. He had been placed in a position different from one part of the House—he would not say a party, for this was not a party question, but differing from one portion of the House as to the practical question of how their privileges were to be maintained; and from another portion of the House as to the question of privilege itself. He would not now enter into questions where he could not afford much assistance to either portion; but he felt himself called on to state the part which he had been compelled to take, after bestowing on the subject perhaps not so much pains, but certainly as much anxious attention, as his learned Friend, the Solicitor-general had shown, by the very able manner in which he had performed his duty on the present occasion. In the observations which he had to address to the House, he hoped he should be able to follow the example of the learned Lord who had just sat down; for certainly a calmer or more temperate speech, or a speech conceived in a spirit more proper to discuss such a subject, he had never heard. And if he should err, which, however, he trusted he should not, it undoubtedly would not be from the want of the best possible example immediately before him. He had no hesitation in avowing at once, that in his judgment the House did possess perfectly the entire privilege on this question which it claimed, and that it was no desire to obtain the good opinion or good word of any one which induced him to say, that he had not the slightest doubt or hesitation in stating that proposition. He thought they possessed it on the ground that it was essential to the due discharge of their duties. He did not mean to detain the House, but he must say, that after the argument of his right hon. Friend, the Member for Tamworth, he could not conceive that any Member of that House could entertain any doubt on the subject. And in the absence of his right hon. Friend, he might be permitted to say [the hon. and learned Mem-
34
ber here turning round, saw that Sir R. Peel was present],—the presence of his right hon. Friend would not prevent him from saying that a more able, more acute speech, or one more becoming a great statesman, he had never heard in that House. His right hon. and learned Friend, the Member for Ripon, had said, that the resolutions of 1837 had been abandoned. He must, whilst he maintained the entire privilege of the House on this point, say, that he felt some regret, that the House did go beyond the immediate point then practically in discussion. But whilst he said, he thought it a mistake to go beyond that point, he would not commit a second mistake by discussing that point again. He was surprised that it did not occur to the court below that a practice of many years constituted what was called law. In a very recent case, that of the Canadian prisoners, an objection was taken that a writ of habeas corpus could not be issued by a single judge in vacation, but that it ought to be issued by the Court of Chancery in vacation, and in term time by the full court; but Lord Denman and the court decided, that, inasmuch as there had been an uninterrupted practice of eighty years, the court could not entertain the question of the legality of the writ. Undoubtedly the practice on which the House relied, was one which had lasted through a much longer period. The fact that the privilege now claimed was essential to enable the House to perform its functions was a sufficient ground to establish the existence of such a privilege. That principle had been acted upon in a case which he recollected at the Old Bailey. That court had issued an order that no publication of its proceeding on any trial should take place while the trial was pending. A person having published some proceedings in contravention of this order, although he could not be said to have obstructed the proceedings of the court in any way, still the court declared that he had been guilty of a contempt of court, and at once by the authority of the judge alone, and without the intervention of a jury, fined the man 500 l., which he was compelled to pay. Now, there was no doubt that it was the right of the subject to be present in a court of justice, and it could not be contended, that having been present, an individual was bound to shut his mouth with respect to what he had heard in court. The

35
act, therefore, which the court took upon itself to forbid, was the printing of the proceedings. The art of printing, was, however, of too recent an origin to enable the court to found upon the common law its right to issue the order which it had put forth and enforced. The only principle on which the Court could have proceeded was, that such a right existed, because it was necessary to enable the court properly to perform its functions. The subject could not be expected to be one of perfect clearness; it was impossible to dogmatize and say, that there were no limits to the privilege now claimed; it should be considered that the general proposition would receive such practical limitations as good sense might suggest. Having discussed the question of the right of the House, he might be permitted to do justice to one of the learned judges of the Court of Queen's Bench—he meant Mr. Justice Coleridge, upon whose judgment, in the case of "Stockdale v. Hansard," his hon. and learned Friend, the Solicitor-general, had made some observations in a former debate. His hon. and learned Friend had quoted Mr. Judge Coleridge's edition of Blackstone's Commentaries, and had read to the House these passages:—
"The whole of the law and custom of Parliament has its origin from this one maxim, that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere."
"The dignity and independence of the two Houses are, therefore, in a great measure, preserved by keeping their privileges indefinite."
His hon. and learned Friend had, however, omitted to read to the House another passage, which was to be found in the same part of the book, and was to this effect:—
"But all other privileges that derogate from the common law, in matters of civil right, are now at an end, save only as to the freedom of the Member's person."
And again,—
"As to all other privileges which obstruct the ordinary course of justice, they are restrained by the statutes 12 William 3, c. 3; 2nd and 3rd Anne, c. 18; and 11th George 2, c. 24; and are now totally abolished by 10th George 3, c. 50."
He quoted this passage in justice to the learned judge to whom he had referred, and not as being at all inconsistent with the existence of the right on the part of the House for which he had con-
36
tended. It appeared by this passage, that legislation had already taken place upon the subject of the privileges of the House. Now, when an act of Parliament was passed upon the subject of privilege, the House must leave courts of law to deal with the act and the cases to which it applied, and if the judges were at liberty to decide upon those privileges of the House which were established by act of Parliament, it was difficult to deny them the power of deciding upon the privileges which the House claimed by the common law. He admitted the experiment of an appeal to the House of Lords was not free from objection, and might be pregnant with danger. There appeared to be but one course possible, that of establishing the privilege by legislation. Such would be the best mode of bringing the question before the House of Lords. The House of Commons had far more power as a branch of the Legislature than it had in its separate existence, by the exercise of its own privileges. The House of Commons was omnipotent when it was backed by the opinion of the people; but without that support it had no power whatever. If this privilege were one which the people did not consider essential, the House could never be able to maintain it by committing plaintiffs or attornies, or even the sheriffs themselves. While, on the other hand, if the public at large agreed with him in thinking that the privilege ought to exist, there could be no doubt that the House would be able to insist upon a proper bill being passed to establish it. The judgment which had been given by the Court of Queen's Bench not having been made the subject of appeal, would be an authority as binding as any other judgment of a court of law, and of equal weight with the judgment in favour of the House in "Burdett v. Abbott," on which the House had relied. If this were so, the legitimate mode of teaching the judges of courts of law that they were mistaken upon a point of law was not by committing their subordinate officers, but by an act of Parliament. The learned Lord who had just spoken had said, that courts of law could not make the sheriffs responsible unless they could give them protection; but did not the same argument apply to the House? What protection had the House to offer the sheriffs against the process of the Court if the

37
sheriffs were now to obey the order of the House. He admitted, that the judgment of the Court was not according to law, that was his opinion; but he did not think the committal of the officers the proper mode of correcting the error; it was a practice, which not being addressed to the intellect and understanding, belonged rather to a barbarous age than the present day. The sheriffs had given the House all the assistance in their power. He agreed that little importance was to be attached to the mere form of the oath which the sheriffs had taken. He was disposed to attach no importance whatever to it. The substance of that oath was, that the sheriffs were to do their duty, and if it were their duty to obey the House, they would be at least as much justified in so doing, as in complying literally with the terms of the oath. But he did consider it important that they should honestly perform their duty, and if it appeared that they had done so, he thought they ought to be immediately discharged. The sheriffs might, foreseeing the coming storm, have cast on others the collision with the House of Commons, and thus relieved themselves from all responsibility. Had the sheriffs been in custody under an attachment, would the House have released them? They kept the money back, in order that the House might, when it met, take some step to protect them. The Court of Queen's Bench, in defiance of the authority of that House, directed that the money should be paid to Stockdale: no notice was taken of that order, but the sheriffs were placed in custody of the Sergeant-at-Arms. Such was the mode in which, according to his learned Friend, the Solicitor-general, the Court of Chancery, at a remote period, obtained its power of injunction. Could that game be played over again in these times? Surely it was more consistent with the justice, the dignity, and the character of that House, to legislate on the subject than to promulgate its authority merely by putting attornies, sheriffs, and bailiffs into prison. He could understand the application of such treatment to the plaintiff in this case, who could not be considered as fairly seeking to enforce a right, but as positively insulting the House. The great object was to prevent Stockdale from receiving the money. The means resorted to by the House of Commons, with
38
that view, were altogether inefficient. Stockdale had actually got the money in his own pocket. Such warfare with the ministerial officers of the court was not humane, correct, or dignified. It was like shooting sentinels, videttes, and outposts, when two great parties were engaged in battle. That House was at war with the Court of Queen's Bench, let them conduct it manfully, go directly to their object, or rather avail themselves at once of their acknowledged constitutional power—call for a conference with the other branch of the Legislature, and, finding that committals must fail, see what could be done to remedy the evil by an act of Parliament. They were now opposed, in this collision, by three-fourths, if not nine-tenths, of the bar; they were opposed, he believed, very much throughout the country; but if they passed an act of Parliament, declaring the law, every one of those parties would willingly obey it. The sheriffs had shown a readiness to assist the House to the fullest extent, and he trusted the noble Lord would think they had remained in custody long enough to vindicate the authority of the House. He had the utmost reliance on the wisdom, intelligence, and moderation of that House; and if the sheriffs did not succeed on the present occasion, he should own it must be because he had taken an erroneous practical view of this subject, and he should bow to the superior wisdom of the House.
Mr. O'Connellcould not think any excuse necessary for trespassing on the House with regard to so important a subject as the present. There was one consolation, at all events, that no discussion had ever taken place in that Houses so totally devoid of party spirit. It was entirely free from any of those squabbles which occurred between them on other topics. They had been told, on both sides of the House, that public opinion was very considerably engaged, some said in opposition, others said in support of the proceedings which they had taken. He certainly thought it could not be denied, that there was a great number of persons who differed from them. Therefore, it was essentially their duty to show to the public that the House was right, and that the judgment of those who differed from it were erroneous. He had heard, during the debate, many professions, no doubt sincere ones, of attachment to public liberty; but he believed

39
that no one could at least profess more devotion to that cause than he did. He certainly was not disposed to quarrel with popularity; but neither was he disposed to court it by the sacrifice of principle. If the public were strongly against them, he should regret that the public had fallen into an error! but he could not admit that the public was right, and the House wrong. There was certainly one consolation. A more erroneous opinion could not have been given by the highest authorities than had been given on the subject of their privileges. The hon. and learned Member for Huntingdon (Sir F. Pollock), a high authority, and the hon. and learned Member for Exeter (Sir W. Follett) were agreed with the high officers of the Crown in these propositions; first, that the privilege of publishing defamatory matter, without its being, in point of law, a libel, existed in the House: secondly, that it was essential to the performance of their duties that they should so publish. This second, indeed, included the first. Thirdly, as every superior court of law had exclusive jurisdiction with respect to its own privileges, that House had exclusive jurisdiction as to its own privileges. These were three distinct propositions, having with them the weight of all the personal authority that any propositions could have in that House. He (Mr. O'Connell) adopted every word of what had fallen from the hon. Member for Huntingdon, in reference to the existence of the privilege. The right of the House had been also supported by the right hon. Baronet, the Member for Tamworth, in a speech of the greatest power, the most lucid arrangement, and the most convincing logic, concluding with a most firm determination to work out the principles which he had established. They had, therefore, at least the certainty that no other motive than entire conviction could be attributed to the hon. and learned personages who supported their privileges. They had heard from those high legal authorities the opinion that the judgment of the Court of Queen's Bench was an erroneous judgment. In that conclusion even the right hon. and learned Member for Ripon concurred. He did not go to the extent of the other hon. and learned Gentlemen; but with regard to the particular judgment he agreed. It being admitted by these high authorities, that this important privilege was essential to the per-
40
formance of their duties, the question was, were they to give it up?—were they to abandon it? Who would counsel them to abandon it? No one who agreed in the proposition he had mentioned could do so. But the hon. and learned Member for Huntingdon advised them to take the course of legislation, because he considered the House estopped by having pleaded to the action in one case. The hon. and learned Member considered, that having once submitted their privileges to the judgment of the Court of Queen's Bench, they were bound to abide by the judgment of the court. He respectfully denied that the House was placed in any such predicament. They were trustees for posterity. They could not give away the privileges of the House of Commons. If they had taken a mistaken course in submitting their privileges to a court of law, the wrong and delinquency of doing so were personal, and the punishment ought to be so; but they did not and could not sacrifice a right which belonged to others. The privilege was not personal. It was no individual advantage to Members of that House, that publications might be issued without danger of actions. No action could be brought against an individual Member for such publication. No individual had any personal interest in this privilege. It existed only for the benefit of the people, and for the purpose of enabling the House of Commons to do its duty towards them. They were not estopped, therefore, by having pleaded; although it might not have been, and he believed it was not, prudent to do so. It created public clamour, and gave an argument to those who opposed the claims of the House, and led to embarrassment. But it created only a difficulty which they ought to be the more determined to put out of their way. If they hesitated now, or took any faltering course, or did not assert the full extent of their privilege,—in spite of what might be said of their having pleaded in an action, and suffered judgment to go by default in another; if the principle being admitted, they did not stand by that principle, then their privileges would be gone. The hon. and learned Recorder of London had taken a very active part upon this subject, and seemed to laugh to scorn the idea of the House declaring its own privileges. But the hon. and learned Recorder's opinion must seem somewhat ridiculous when it was known, that he him-

41
self stood in this position, that when a point of law was raised touching the privileges of the city of London, it was decided by a certificate from the learned Recorder himself. Such a certificate was conclusive in a court of law, so familiar a thing was it, that there should be a power in a body to assert its own privileges. It was impossible for him to entertain any doubt of the existence or of the necessity of the privilege contended for by the House of Commons, the question was now, were they to preserve it? The answer was obvious, they should pursue the course which other courts had pursued when their privileges had been infringed—the course which was pursued by the Court of Chancery, the Court of Queen's Bench, and the Court of Exchequer. The only mode which the law had given to any court for asserting its privileges was by attachment or arrest of the person. It had succeeded with the Court of Chancery after the claims of that court had been opposed for a number of years. At first the courts of common law refused to listen to the Court of Chancery. Lord Coke went the length of indicting counsel and attorneys, for being concerned in an injunction to stay execution after judgment. The Court of Chancery of the present day exerted its particular authority by attachment. If any man brought an action in a court of law against a receiver or person employed by the Court of Chancery, that court would at once stop him by attachment or arrest of his person. The Court of Exchequer exercised an exclusive jurisdiction with regard to actions against its own officers, and it asserted it, by ordering such actions, if commenced in any other court, to be transferred to the Court of Exchequer. It enforced its claim by personal arrest of the plaintiff, counsel, and agent, if the action be pursued. That mode had been successful hitherto, and it would be successful with the House. The House must succeed if it did not abandon its ground. They had the sheriffs in custody. Was it a small power to be able to keep them in custody till September next? He was now speaking of the power of the House. It might be granted, that they had a giant's strength, although the question might remain whether they should use it like a giant. It had been attempted to ridicule the weakness of the House. He wished to show its strength. They had the power of imprisonment till
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September. They had more, because Parliament need not be prorogued. The right hon. and learned Member for Ripon had been almost facetious in observing, that all the boasted power of the House was to end in an address to the Queen. Parliament must sit for a considerable time for the dispatch of business, and if they thought proper to address her Majesty not to prorogue Parliament, was it not likely that her Majesty would consent to what was asked by the voice of the great majority of the House? Was it likely that the Queen would be advised to resist the wish of the great majority of the House, not consisting of one party, Ministerial or Opposition, Tories, Whigs, or Radicals, but composed of the leading men of all parties—was it, he repeated, to be supposed, that her Majesty would be advised to refuse the wish of the House to continue sitting by adjournment? And then the House might continue the imprisonment from September to September twelvemonth. The power of the House to punish, therefore, was very great. It was another question whether they should continue to detain the sheriffs. In his humble opinion, they could not shrink from keeping them in custody. No moral guilt attached to the sheriffs, but they were guilty of a continual contempt of the House. They had not bowed to its authority. He might be told they were bound by their oath, though that favourite argument of the hon. Member for Oxford University had been thrown overboard by some of those who advocated the dismissal of the sheriffs. The sheriffs took an oath duly to execute the writs placed in their hands. How did they fulfil it? The men who took the oath never executed the writ at all. They got somebody else to take a similar oath, and transferred all the obligation to him. The deputy sheriff might be an honest and intelligent, or an unintelligent man and not honest—or a man neither honest nor intelligent, it mattered not—the faithful keeping of the sheriffs oath depended upon him. He said nothing against the present holder of the office, who, he believed, was a very honourable and intelligent man, but it was left very much to chance. He wondered if they ever came to be punished elsewhere for perjury, whether the sheriff would suffer by himself or by deputy. A noble and learned authority seemed to have advised the sheriffs to withdraw the

43
power of executing writs from their deputy, and so, by embarrassing the administration of justice, compel themselves to be let out. He believed a grave and learned personage had given that advice. It would be a very odd way certainly for the sheriffs to keep their oaths, to deprive themselves of the only way they now had of executing the writs which they had sworn to execute. But the learned authority who gave the advice ought to have known, that if the sheriffs failed to execute any writ, it was the duty of the coroner to do so. If he did not know that, he was not a very learned Lord. But the sheriffs might be compelled, by seizure of their goods, or arrest of their person, to execute all writs sent to them, and the friendly advice would, if followed, turn out very ruinous to the sheriffs. But the sheriffs were bound to execute writs with all restrictions and qualifications. They were not to arrest an ambassador or ambassador's servant, or any person otherwise privileged or protected. The sheriffs had placed themselves in the predicament in which they were placed. They were not coerced by penalty to become sheriffs, but had canvassed for the office. They must have taken the office with all its responsibility, which was great, and no man in accepting the office of sheriff could be sure that the most anxious observance of his duty would save him. If the sheriffs had returned nulla bona to the writ in the case of Stockdale v. Hansard before the late decision, their defence would have been complete. In the well-known Kensington Palace case, the privilege was decided to be a sufficient ground for the non-execution of a writ. But the sheriffs had adopted a different course, and the Court of Queen's Bench had placed them in their present predicament. And it was said now, that although the attachment that had been issued was not returnable before April, the money had been handed over either the day before, or that day to Stockdale. He believed, indeed, that on investigation, that statement would not be found to be accurate. Well, no matter. If the sheriffs had preferred doing their duty to the House, the House would have been bound to give them protection equivalent to their responsibility. If the sheriffs had paid over the money to Hansard, the House would have been bound to protect, and to commit any one who molested them. Would learned Gentle-
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men deny that the House had that power—or would they deny, that it had the right? Supposing that the Queen's Bench kept one of the Members of the House in custody, what remedy had they? [Mr. Williams Wynn: There was the case of Fellowes.] That was a case precisely in point. Here they were bound to go on. But there was a power of committing the judges. Why, if the judges stood in the way of the liberties of the people, as they had done so directly here, then the House was bound to commit the judges. They must do so, or give up their privileges. Hon. Gentlemen opposite might revere the judges more than the rights of the people. He admitted that they might do that, but then, if they revered the rights of the people of England, they would be bound to go on. The House had committed judges before, it should be preferred to do so again if it were necessary, and for himself, he would say, that he should prefer dying upon the floor, rather than give up a remedy which the usages of Parliament allowed to be used against all offenders. He was sure, that the hon. and learned Member for Huntingdon would believe him when he said, that he meant not to treat him with any disparagement, but he must say, that the suggestion of appealing to the House of Lords, or to a legislative enactment, in such a case as this, did not accord with the usual good sense of that hon. and learned Gentleman. It was easy to say "legislate." How were they to legislate? Was it by a declaratory act? Why, then, it would be said, that the decision of the Court of Queen's Bench was against them, and that the declaration would be false. Was it by an enabling act? Then they would abandon their privileges. They would admit that they were wrong, and leave themselves at the mercy of the House of Lords, or the Crown. Legislation, in his opinion, was impossible. The Attorney-general, in whose conduct this case had been placed, had been induced by the House to take a less decided position than he thought ought to have been done. The instant that the second action had been commenced their privilege ought to have been asserted, and if it had been so, they would not now be in the embarrassing position in which they had been placed. The longer they delayed, the more embarrassing must their situation become. The House might sacrifice

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its rights if it pleased, but if it were thought proper to maintain their rights, then they should not be pusillanimous in the assertion of them, and while they compassionated individuals, who might be the objects of their coercion, they roust still exercise that coercion, or abandon the most essential privileges of the House of Commons.
Mr. Shawagreed in the necessity and importance of retaining the privilege of printing the proceedings of that House, but he would beg shortly to state the reasons upon which he would give his vote that night for the discharge of the sheriffs, He ventured humbly to think, in accordance with the great legal authorities on both sides of the House, that the judgment of the Court of Queen's Bench in respect of their privileges had been erroneous; but was that any reason that the House should fall into error itself? Two wrongs could not make one right, and he considered that, in the first instance, the House had taken the right course in directing its officers to plead its privileges. Now, what did they say by the third resolution of the House in 1837?—"That it was a breach and contempt of our privileges for any court to assume to decide upon matters of our privilege;" and then, what did they do? Why, submit to a court,—namely, the Court of Queen's Bench, by plea, the decision of the very question of privilege now at issue. It needed not to be a lawyer to understand that there was neither law, nor reason, nor manliness, in such a course as that. Then, again, whom did their resolution denounce as the violators of their privileges? The court that assumed to decide upon them. And whom did they grapple with? Their mere instruments, faithfully discharging their known duty, and acting under the court's authority and command, and for which that court offered them its own responsibility. If the House wished to try the real question, why did not they commit the judges? And they answered it for themselves without difficulty—because the House dare not. The Solicitor-general had referred to the authority of Mr. Justice Blackstone, but he thought he had not very fairly quoted it. The extract from Lord Coke had reference to the law of Parliament, in distinction to the privileges of Parliament, and so it would appear from the next paragraph,
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which treated of privileges, while the one quoted related to the law of Parliament, as well as from the context, which illustrated the positron by this example:—
"Hence the Lords will not suffer the Commons to interfere in settling the election of a peer of Scotland. The Commons will not allow the Lords to judge of the election of a burgess, nor will either House permit the subordinate courts of law to examine the merits of either case."
Then Blackstone continued,—
"But the maxims upon which they proceed, together with the method of proceeding, rest entirely in the breast of the Parliament itself, and are not defined and ascertained by any particular stated laws."
The Solicitor-general, who seemed to rely on the notes of the editor, as much as upon the text, had omitted the following note:—
"This sentence seems to imply a discretionary power in the two Houses of Parliament, which surely is repugnant to the spirit of our constitution."
With regard to the best course to be pursued for extricating the House from its present difficulties, he thought it had been suggested the other night by his hon. and learned Friend, (Sir W. Follett.) Mr. Stockdale was clearly in contempt, and let him remain in custody; and the Messrs. Hansard, as the servants of the House, must clearly be indemnified for all personal loss. In the other actions let the servants of the House be instructed to plead—let the enlightened judges of the Queen's Bench have an opportunity to review their own decision—let that again, if necessary, be taken to a court of error, or, if necessary, to the House of Lords in its judicial capacity, and he had no apprehension of the consequences of such a course. Was there a just or reasonable man in that House, or in the country, who, at the present moment, did not feel for and honour those gentlemen who were undergoing severe personal privations, for no other reason than that they had faithfully performed their public duty? Was there a Gentleman in that House who would have failed to act in the same manner had he been placed in the same situation? And if the sheriffs had acted otherwise, was there a man of spirit or sound constitutional mind in the country who would not have considered them unworthy of their high station, and wanting in that

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ness to act on that principle during the late reign, by giving up privileges which were as ancient as any part of the common law of England, the privileges which protected the lands of a Member from entry, and his servants from civil arrest. To his surprise he had seen the former of those privileges described by the Chief Justice of the Court of Queen's Bench, following in the wale of a noble Lord, the late Lord Chancellor, as an outrage and a violation of the law, because the House of Commons had committed a person for making an entry on the fisheries of one hon. Member, or the rabbit warren of another. Those noble Lords could hardly be ignorant that the privilege of protection for the lands and property, as well as for the persons of Members in question had belonged to the great council of the nation from Saxon times, and was kept up by being formally demanded on the first day of every new Parliament at the bar of the House of Lords by the Speaker, in the name of the Commons. The privilege might be necessary when the Session continued a shorter time—when communication with the more distant parts of the country was slow and uncertain—when the ordinary method of commencing suits as to estates was by making an entry on them. Circumstances had since changed, and when it was found that this protection unnecessarily impeded the course of justice, and might be dispensed with, Parliament, by the statute of the 10th Geo. 3rd., gave it up. By the same ground, the protection of servants was taken away, but it is observable, that while it was enjoyed, the courts did not in most cases determine whether the particular servant was entitled to privilege; but the House passed a resolution whether such or such person should have the privilege of immunity from arrest or not. The existence of the privilege for publication had not, in the present debate, been disputed, it had been admitted, that it had been enjoyed for two centuries. Long usage was the only established ground on which a privilege could be claimed. It was also admitted that the privilege was essential to the due discharge of the duty of the representatives of the kingdom. But it was asked, after having allowed the Attorney-general to appear, how could the House consistently say it would not be bound by the judgment of the court? He never was a friend to allowing an appearance to an action of this kind. He had never been a willing party to the House pleading
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before the courts of law. In the case of "Burdett v. Abbott," he had divided the House on this question but it was then asked, how was the court to know, unless the House pleaded, that this was done by the authority of the House, and so far, and on that point only, he had consented to go before the courts. He had reluctantly, also, consented on the same principle in the present case, that it might be known to the court that the act complained of was not that of one individual, but of the House—that Mr. Hansard had acted by order of the House, and, as their servant—but by so doing he never consented to submit to the judgment of the Court of Queen's Bench the question, whether the House of Commons had the authority to publish or whether it had exercised that authority prudently or discreetly. The same was the case with respect to the return to the writ of the habeas corpus. The House had, for a long course of years, from 1680 downwards, decided wisely he thought, that it was the duty of the officer to make a return to the nature of the habeas corpus, stating that the party was committed by the authority of the House, but to state, the nature of the contempt was held to be a matter of supererogation. The principle that whatever matter of privilege should arise in either House of Parliament should be judged of solely by that House to which it related, was established and admitted by many authorities, by Coke, by Hale, by Blackstone, and by judges as learned, as independent, and as much attached to the liberty of the subject as the present judges of the Court of Queen's Bench. That principle was the sheet-anchor on which all their privileges depended. He would not, therefore, consent to submit a question of privilege to the judges of the Court of Queen's Bench, still less would he submit it to a Court of Error, or carry it to the bar of the House of Lords. Now, as to the course of proceeding, he thought that the authority of the House had been assailed, and it had in some measure been asserted and vindicated. He did not think, therefore, that it would be necessary to the complete assertion of that authority to confine the sheriffs to the end of the Session, much less to address the Crown for an adjournment instead of a prorogation. On the other hand he could not assent to their immediate discharge on the very day on which they had consummated their disobedience to the House by paying over the money to Mr. Stockdale in defiance of its

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firmness and independence which ever had characterized, and he trusted ever would characterize, the public functionaries of the country. Had that House been sufficiently
"Beware of entrance to the quarrel;"
then would he have agreed with the Solicitor-general, that, "being in," they should so
"Bear it, that the opposers might beware of them."
But they had not. Their entrance was incautious, and that perseverance was impossible was demonstrated by the monstrous extremes to which its advocates were driven; for to what a height would public feeling and sympathy be excited on behalf of those suffering gentlemen, when the suggestion of the Solicitor-general went forth to the country, that that House should address the Queen to adjourn, instead of proroguing them, in order that they might inflict a sort of perpetual imprisonment upon those public officers, whose only crime was, that they were faithful to their public duty. Again, a threat was insinuated of calling in aid the military and executive power to coerce the judges. It was an idle threat. He did not, for a moment, suppose the Government would have the rashness and recklessness to attempt it. But coming from such authority as it did, he could not consider the threat in itself a harmless one—caught at, as no doubt it would be, for their own purposes, by those (alas! too many in the present day), who were disaffected to the established laws and institutions of the country. God forbid that we should come to such a pass as that; but if we did, was there any doubt on which side would be the triumph? Before it was too late, let them retreat from this unseemly contest. He would, with his hon. and learned Friend (Sir. W. Follett), deprecate that this should be made the subject of a mere party division. He had been surprised to hear hon. Gentlemen on the other side, and particularly the members of her Majesty's Government, charge the present question as a proof of disunion amongst the followers of his right hon. Friend. He was prepared and proud to acknowledge his right hon. Friend as his leader in that House; he placed the most unbounded confidence in his prudence, his integrity, and his talents; but, upon a question
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which he considered purely a judicial one, like the present, he would no more place his vote in the keeping of his right hon. Friend, than upon the bench of justice he would profess concurrence in the opinion of another judge, no matter how incomparably superior he might be to himself, with which he could not conscientiously coincide. He thought it no credit to the Government (all of them, he believed, who spoke, with the exception of the noble Lord (Lord J. Russell), himself,) to insinuate or charge it as an offence against hon. Members at that side of the House, that in the discharge of their judicial functions, they had not been biassed by party considerations.
Mr. Williams Wynnsaid that some apology was due to the House for presenting himself to their attention this night, more especially after the luminous and able speech of the learned Lord, in the whole of whose argument he most entirely concurred, so much so, that he doubted whether it was possible for any person to offer anything new, but he did feel it necessary in some degree to say that he maintained every opinion which he had already, during a long course of years, stated to the House upon this subject. Regretting as he did, with every lover of his country, and every one who wished to respect the constituted authorities and that due obedience should be paid to them—regretting, he said, on this account, that a collision should have taken place between the Court of Queen's Bench and that House, he could not agree with the statement, that the judges and that House had different duties to perform, that the judges were bound to maintain and observe the rights of the subjects, and that the House had no such duty to perform with respect to its privileges, which it might or might not enforce. Those privileges were not their own individually—it was not at their discretion to enforce or abandon them. They were committed to their care by their constituents—they were bound to uphold them, and as they had received them were bound to preserve them, and to hand them down to their successors. Undoubtedly it might happen, and it had happened, that privileges which at one period of our history, and in one state of society, were necessary for the due and important discharge of the duties of the House, became no longer requisite. In all such cases the course followed was obvious, and the House had resigned such privileges by legislative enactment. The House had shown its willing-

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orders. The sheriffs might now be considered as contumacious, but if they should hereafter make a proper submission to the authority of the House of Commons, expressing their regret, he should feel disposed to treat a petition so framed with favourable attention; but until they complied with the usual terms upon which the condonation of the House was in other cases granted, he should feel it his duty to withhold his assent to any such proposition as the present. In conclusion he would say a word or two on the question—how was this matter to end—how was the House to get out of the difficulty? In principle he was inclined to agree with the Solicitor-general as to the power of the House and the mode of proceedure, but the inconveniences of occasioning an actual conflict between officers acting under the authority of the Judges of the Court of Queen's Bench and of that House were of a nature to induce every Member to do his utmost to avoid resorting to such an extremity. He thought, therefore, the best plan on the whole was that which had been already suggested by his right hon. Friend the Member for Tamworth; viz., a declaratory bill, to originate in the other House, and to be introduced there by the first law officer of the Crown. If, however, from any cause this course should not be adopted elsewhere, he was still of opinion that this House would in no degree derogate from its own dignity, or weaken its privileges, by itself originating such a bill. By so doing, it would manifest its desire to avoid contest, and to pursue the most conciliatory proceeding, and even if it failed, it still would possess every power which it now enjoyed for vindicating its own privileges.
Lord J. Russellsaid, that if they had not been obliged to enter into considerations, other than those which concerned the question immediately before the House, it would have needed but a short discussion. The immediate question before the House was, that the sheriffs be discharged from custody; and that motion, as he conceived, had been placed upon two grounds. The one was in contradiction to that which had been repeatedly resolved by that House, namely—that there existed no such privilege as the House had asserted; that the House had done wrong in committing the sheriffs; and that they could not take too early an opportunity of repairing that error by at once discharging the sheriffs from custody. The view of the question had also been supported in a petition which had been
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presented to that House from the Lord Mayor, Aldermen, and Common Council of the city of London, asserting that the order of that House was invalid in point of law; that it was an infringement of the prerogatives of the Crown; and that privilege to the extent asserted by that House was calculated to destroy the liberties of the subject, and to subvert the laws of the land. As he understood also, although, of course, he could not positively assert it, the sheriffs had themselves made a similar assertion; they had contended for a similar immunity from the privileges of that House, and had addressed the other House of Parliament to procure their liberation. Upon this ground he thought it impossible for the majority of that House, without any reason being assigned, to induce them to retreat from their former decision, and comply with the motion before them. Other grounds had been stated by hon. and learned Gentlemen who had spoken on this question with great ability, but who had not favoured the House with their opinions in the previous stages of this question, in the first days of the session. He alluded more particularly to the hon. and learned Members for Exeter and Huntingdon (Sir W. Follett and Sir F. Pollock), who in the course of the present debate had given their opinions on this subject. As he understood those hon. and learned Gentlemen, they claimed this privilege to the fullest extent that had been ever claimed by those who had assisted it in the course of these debates. The hon. and learned Member for Huntingdon declared that the House possessed the entire privilege claimed as being essential to the due discharge of its functions. The assertion of the hon. and learned Member for Exeter was no less clear, and no less explicit, and the argument by which the hon. and learned Gentleman supported it was most able and convincing, but the hon. and learned Member conceived that the House had not taken the proper course by which their privilege was to be asserted, and he advised the House to retreat from their present course of proceedings to refrain from further commitments for actions brought in the courts of law, and in pursuance of such result to discharge the sheriffs. He felt an obvious, and an insuperable objection, to taking the course which the hon. and learned Gentlemen had recommended. Whatever those hon. and learned Gentlemen might have submitted or suggested with regard to the course to be pursued in

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vindicating the privileges of the House in future, they had not pointed out any means by which, abandoning the present course, the House might immediately assent and maintain those privileges. He did not undervalue the suggestions of those hon. and learned Gentlemen but the plan they recommended might entirely fail in vindicating their privileges; and having failed, and having given up the power of commitment, the undoubted power of the House—a power by which their privileges had been asserted in former times—a power by which they were now asserting those privileges, they might, in abandoning the course they had adopted, and adopting the alternative suggested, utterly fail in securing other means of maintaining those privileges which those hon. and learned Gentlemen themselves asserted to be indispensable to the due exercise of the functions of the House. Therefore, with regard to the immediate question before the House, he did not think that the House could long doubt about the decision to which they ought to come. But he must own that there were larger and graver questions connected with this debate, to some of which it was impossible for him not to advert. The hon. and learned Gentlemen on the other side, and the right hon. Gentleman the Member for Ripon (Sir E. Sugden), had asserted as strongly as the Attorney and Solicitor general, as strongly as the Lord Advocate and the Solicitor-general for Ireland, the necessity of the House possessing this power. They had asserted that the privilege claimed was indispensable for the due exercise of its functions; and they also asserted that in their opinions the judgment of the court of law was erroneous. Was not that a most important point gained for the House? The judgment of the court of law, be it observed, went the full length of saying that the resolution of that House, which had been undisputed till lately, which had not been questioned for many years, namely, that that House was the judge of its privileges, was erroneous, and that the Court of Queen's Bench was to be the judge of those privileges. The decision of the court went to this, that with regard to the power of publication, no such power was necessary; that for the due exercise of their functions it was wholly unnecessary; that to the House of Commons it did not belong to circulate and distribute and publish their proceedings, because no part of that power properly belonged to the House of Commons.
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That was the opinion of the judges; and the question was, would they allow the judges to decide concerning the privileges of that House? But this opinion of the judges, be it observed, was against the opinions of all, or nearly every one, of the Members of that House, who were most fit to form an opinion on the subject. They all declared that the possession of this power was absolutely necessary, and that their functions could not be duly performed without it. He asked them where ought the power of judging of their privileges to be placed? Ought it to be placed solely in the courts of law? for, be it observed, if that House were not the judges the courts of law must be; or ought it to be placed in the House of Commons? He thought that few men would doubt that the House of Commons were the best judges, and that if they transferred to the courts of law this essential power of saying what privileges they might possess, and what privileges they might not possess, and what privileges were necessary for the due performance of the functions of that House, they would be acting in contradiction to all the great authorities of former times, who saw in such a course the imminent danger of the House losing its most valuable privileges; and they would be acting in contradiction to the doctrine laid down by Lord Coke and Sir M. Hale, and by Sir W. Blackstone, who, at different periods of history, were the great, ornaments of the law at the times in which they lived. By coming to the opinion which the House must give—namely, that it was essential that they should be the judges of their privileges, there was a further question remaining, which had been argued with so much ingenuity—namely, whether they could maintain those privileges by the course which they had pursued? Although there was great difficulty in the case to which the right hon. Member for Ripon had alluded, namely, that if they did not give to the courts of law any information, that the question raised before them was a question of privilege, it might well be argued that the courts of law could not say whether those persons who appeared before them, whether the Messrs. Hansard, or any other individuals, were persons authorised by that House; and therefore judgment might be given without any notice being taken of the authority of the House, or of its being mentioned; yet he felt that if they adopted another course, they would undoubtedly be liable to an

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imputation, which he was ready to share with the right hon. Gentleman who spoke last, namely, that they were apparently submitting to the courts of law, and were not ready to be bound by their decision. He confessed that upon this subject he had always thought the doctrine held by Mr. Ponsonby on the trial of Burdett and Abbott, was both constitutional and practicable, and he was very sorry to find in these times that, the opinions of Mr. Ponsonby were opinions which no party in that House seemed willing to follow. Mr. Ponsonby held in very high estimation the privileges of that House, and in objecting to the course pursued in the case of Burdett and Abbott, after staling that he would not surrender the privileges of the Commons of England, that gentleman thus expressed himself:—
"Reverting, then, to the ancient rule of practice, it was invariably the custom of that House to commit any person who made himself the instrument of calling into question its privileges. Upon that rule of practice, he did feel it his duty to state his opinion, that the solicitor who had caused the notice of action to be served upon the Speaker should be committed. Such a course was not alone the practice of that House; it was acted upon in all courts invested with the power of commitment for a contempt of its jurisdiction. In the Court of Chancery, for instance, where an injunction had been granted to stay proceedings in an action at law, the attorney who would, after such injunction, venture to proceed, would subject himself to an attachment, and be most certainly punished for a contempt of the jurisdiction of that court. Was not, then, the House of Commons fully empowered to take steps against a solicitor who had proceeded to call its Speaker to answer for conduct taken in obedience to its will, and which that House had adjudged to be necessary for the protection of its privileges? Most undoubtedly it was; and as, in such a case, the most correct line was to follow the conduct of their ancestors, the enforcement of such a right in the present instance was most advisable. The next question to be considered was, the peculiar situation in which the Speaker of that House was at present placed. To many Members it appeared a most monstrous novelty, that the Speaker of the House of Commons should be obliged to appear in one of the courts below for an act which he had done in pursuance of the orders of that House. A novel proceeding it certainly was, for which there was no precedent; as to an action brought against the Speaker, the instances were rare. Yet monstrous as it appeared to some, and novel as it must seem to all, it was his firm persuasion that the Speaker ought to appear and put in his plea to the action. Such course was open to him without
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the slightest apprehension of his surrendering, in the remotest degree, the privileges of that House; and such course the House could adopt, although it had determined to commit the solicitor. As an illustration of that opinion, he would suppose the case of an individual committed by the Court of Chancery for contempt, whose solicitor had instituted an action in a court of law for false imprisonment against the Chancellor. What were the steps which it must be presumed the Lord Chancellor would, under such circumstances, take? For himself, he would say that if such a proceeding had occurred when he had the honour of holding the great seal in Ireland, he would have certainly felt it his bounden duty, under the jurisdiction of his own court, to commit the solicitor, and to appear in the court of law to put in his plea. For, unless such a course was adopted, how was it possible for the courts below to be apprised of the nature of the case? How was it possible for them to inform themselves of those facts, without the knowledge of which they could not know whether the injury complained of was committed in a private or public capacity?"
It seemed to him (Lord J. Russell), that there was much of very sound reason in what was stated by Mr. Ponsonby on this occasion, and, considering the position of that Gentleman as Chancellor of Ireland, his opinion was certainly entitled to considerable respect; and he did not see that the House was acting inconsistently in taking the course of committing the plaintiffs and attorneys in actions of this kind, and at the same time informing the courts of law of the circumstances of the case, by pleading the privileges of the House. He was aware, however, that many persons entertained a different opinion, and considered that the House was acting inconsistently in pleading before a court, and then not submitting to its judgment. He confessed, he saw considerable difficulty in the case, but at the same time his own views as to what should be done were made up, though he would not insist upon them, if any other better course could be suggested. The right hon. and learned Member for Ripon proposed, that without at all relinquishing their privilege, Mr. Hansard should be allowed to plead to the action as he should be advised. He did not think that such a course could be taken. He did not think that the House could decline pleading privilege; and as many of their publications might contain matters most criminatory, and which, published under ordinary circumstances, would be considered libels, the difficulty would be one to which they would be frequently liable. There was a further objection,

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also, to this course of proceeding—that it would lead to an inquiry, in the courts of law, of the matters stated in their reports. He would instance the tenth report of the commissioners of naval inquiry, in the year 1805. Now, suppose any party therein impeached, had brought his action against the printer of the House, and that the House had given him authority to plead to the merits of the action, they would then necessarily have had the question before the courts, whether certain persons had been guilty of certain crimes and offences? He confessed he saw very great practical difficulty in the course the House was now pursuing. He certainly believed, that in regard to most persons, the committal of the plaintiff and his attorney, and the refusal to plead, would be sufficient to put a stop to these actions. He knew that when a person really felt his character injured, and made no false pretence, like that alleged by Mr. Stockdale, that in the case of such a person, he would feel it no reparation for the injury done to his character, to go into a court of law, where nothing would be said upon the subject, but merely certain damages assessed. But, on the other hand, there were some persons who, desiring notoriety, might take advantage of the House not pleading, and, by pressing their action on vigorously, might, during a recess, succeed in carrying it, and getting damages assessed. It was very true as had been suggested in the course of this debate, that the House, with a view of increasing and continuing its power, might address the Crown not to prorogue Parliament, but to permit the House to adjourn from time to time. But though this might be a very advisable course to adopt in a particular case, it was not, he thought, a course by which a permanent remedy could be obtained for a difficulty like the present. Besides, by leaving the case undefined, and unsettled in its merits, they would be exposing persons in executive situations, like the sheriffs to very great embarrassment, as to whether they should obey the courts or the House of Commons. He must say, he thought the sheriffs would have done better if they had obeyed this House, and looked to it for protection; but, at the same time, he fully believed, that in what they had done, they had honestly followed their own judgment in the performance of their official duty. Whatever might be the permanent remedy which the House might apply to the present case, he did not
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think that in the mean time they should inflict any unnecessary hardships upon individuals. He believed, that the House had fully at its disposal means sufficient to maintain its privileges, but he thought also, that if they could maintain their privileges and powers without bringing into collision the House of Parliament and the judges of the land, without bringing into dispute, and, in some respects, into disregard, persons to whom authority and respect were due, and if they could avoid anything tending to a breach of the peace, it was their duty most anxiously to look for the means of so acting. Amongst the various courses which had been suggested in this matter, was that of calling in the aid of legislation to declare and establish the privilege of the House. His opinion was, that if such a declaratory law were to be obtained, it would be perfectly consistent with what had been done in former times, and if carefully framed, it might secure the necessary power of the House without injury to their privileges. The hon. and learned Gentleman opposite had said, that the Lord Chancellor was a person well fitted to frame and bring in such a measure. Now the fact was, that a communication had been made to him by the Lord Chancellor, who, after looking calmly and dispassionately into the matter, expressed his opinion, that the privileges of the House ought to be maintained, but that he did not think that it could be done in the present instance without a legislative measure. His noble and learned Friend had pointed out the various objections which occurred in his mind to different courses of proceeding, and thought it better, on the whole, to bring in a measure of this kind. He was not entitled to say how far his noble Friend was prepared to bring such a measure forward, but he knew that he had been directing his attention to the subject for some time, and he hoped that he would be able to decide before very long. But however this might be, he thought that the House should try a legislative measure rather than pursue this course of commitments further. He did not think that the privileges of the House were of that aerial nature, that at a mere touch the feathers would drop out of their wings, and they would fall to the ground; for the course which he was now recommending he could adduce an authority, in the first year of James 1st, respecting the privileges of Members from arrest. Sir Thomas Shirley was taken in

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custody by the Warden of the Fleet, who refused to give him up, and was in consequence committed for contempt. The House was so determined to maintain its privilege of exemption from arrest, that it passed an act respecting writs against persons after their privilege had ceased, and inserted therein a clause enacting and declaring that no sheriff or gaoler should be liable to any action for suffering to be released out of their custody persons being privileged, and this freed the sheriffs and other similar officers from such difficulties and liabilities for the future. Now with respect to the privilege of publishing their papers, it seemed to be almost universally allowed that this was a privilege which both the House of Commons and the House of Lords ought to possess; and if this was the case, they ought to be able to do so without putting individuals to unnecessary hazard and hardship. For this purpose, he thought the best course would be to communicate formally to the courts the existence of the privilege. He had no doubt that if this fact were communicated to them under the authority of Parliament, the objections would not be persevered in, and that the judgment already given, and which had been declared to be erroneous, would not have any influence upon their future decisions. Upon the whole, he thought that the House should not go on with these commitments without first endeavouring to apply a remedy to the existing difficulty. At the same time, he thought that the power to commit was essential to the existence of the privileges of the House, and that in the case of Burdett v. Abbott, and in Stockdale's second action, the House had lost some of its authority by not resorting to it. But whilst they took care to maintain their privileges unimpaired, it was also a serious and important part of their duty to maintain the public peace of the country. Under all the circumstances of the case, he was decidedly against the motion for setting the sheriffs at liberty; but in voting against it, he begged to say that he did so from no vindictive feeling, but from a desire to preserve those powers by which alone they could maintain the privileges of the House.
Mr. Kellywas unspeakably disappointed with the speech of the noble Lord. When the noble Lord admitted, that the sheriffs were in a position which exposed them to the greatest difficulty, and when he then urged the vindication of the privilege of the
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House by a protraction of their imprisonment, he felt that he had a right to be disappointed. The speech of the noble Lord was unsupported and contradictory. He greatly regretted, that the noble Lord had relied too much on the advice of the Solicitor-general, and that he did not follow his own inclination, and put an end to the punishment of those gentlemen. With respect to the privilege in question, he thought, that it should never be asserted if it had the effect of injuring an individual. The question before the House was, whether the sheriffs—discharging their duty only, as the House admitted—should be punished any longer in vindication of its privileges. The noble Lord himself, if his high station and great talents had not exempted him, might be placed in a similar situation to those gentlemen; and, if he were, no doubt he would act as they had acted on this occasion. In respect to the course adopted by the House of forbidding its officers to plead to any action in the courts, he should only say, that if such a course was deemed necessary for the maintenance of its dignity, before the next session there would be a plenty of actions brought, and perhaps heavy damages obtained. He hoped the House would abstain from all further severity in this matter; and he appealed to its humanity, its honour, and its sense of justice, to agree to the motion.
Mr. T. Duncombedoubted whether the motion which the noble Lord opposed was really worth dividing upon. If the House thought it was, he was ready to go to a division without a single word. But he must say, that the hon. and learned Gentleman who spoke last did not seem to him at all to appreciate the victory which those who thought with him gained. Why, what was the whole question involved in this discussion? For what was it that the hon. and learned Solicitor-general had said, that he was not ready to prorogue but to adjourn Parliament? For what was it that the right hon. Member for Tamworth declared himself ready to give up his seat? For the support of the resolution of thirty-seven, which he (Mr. Duncombe) then felt it his conscientious duty to oppose, and which he had ever since resisted under every phase. That resolution was simply this—"It is the law and privilege of Parliament, that this House has the sole and exclusive jurisdiction to determine the existence and ex-

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tent of its privileges." Why, it was under that resolution that they held the sheriffs in custody; it was under it they held Mr. Stockdale in custody, and sent Mr. Howard to Newgate. Now, it seemed some legislative act was agreed upon. Why, that was the whole question. They who approve this resolution never said that the House should not have the power of publication; but they always maintained there were two ways of effecting that object, a fair and a foul means, and that the only proper and correct way of proceeding was by legislating on the subject. They had the sheriffs shut up in their cells, and what was the consequence? That the mayor of the metropolis of the kingdom came to offer them an address of sympathy on their sufferings, and of congratulation on their martyrdom. He blamed not the Government, or the Attorney or Solicitor general, for obeying the commands of that House. The latter were entitled to thanks for the zeal and ability with which they followed the instructions of the House; and not the less because they were unsuccessful. If they had been defeated, the subject had gained a great accession to his liberties. What cared he whether he voted with those to whose views he was generally opposed on the public questions which came before that House, when he was conscious that the great question which he supported was, that no individual should be libelled by that House without giving him any redress whatever? The noble Lord said he would keep the sheriffs in custody. He did not know whether this step would satisfy the dignity of the House; but this he knew—they would fall lower and lower in public estimation every hour and minute that these men remained in custody after the admission, by the promise of a declaratory act, that the sheriffs had only acted in accordance with their duty as the servants of the courts.
Sir M. Wooddefended the conduct of the sheriffs against the attacks of hon. Members who had accused them of not endeavouring to protect the privileges of the House. He denied the imputation. They had done and suffered everything in their power for the protection of those privileges. It was only yesterday, that there was a claim made on them by the assignees of the Insolvent Court, which was satisfied. To-day there had been an attachment issued against them. They had
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put off the payment to the last moment, but they were obliged to satisfy the judgment to-day. What did the House mean to do with the sheriffs? Did it intend to keep them in confinement next Monday, while the whole loyal population were enjoying themselves? Did not the Liberal side of the House, as it called itself, think that it had sufficiently punished those innocent men?
Sir R. Peelsaid, the hon. Member for Finsbury had adverted to a former declaration of his, to which he adhered. If the House of Commons could not possess this privilege of free publication, without being held liable to be questioned or controlled by a court of law, not only would he retire from the performance of his public duties as a Member of that House, but he thought the House of Commons would take a fitting course in closing its doors, rather than by continuing, with maimed and mutilated powers, to hold out the semblance of a popular institution, without the power of discharging any one of the functions which belonged to such an assembly. The hon. Gentleman said, that the question now brought to issue was this—shall the House of Commons have the power of publishing defamatory matter, without giving to the individual defamed any means of redress? That was the issue on which he wished to rest the case. He said the House of Commons ought to have that power. Unless the House possessed the power necessary to serve the public interest, without liability to any question whatever, that was to say, without the power of any individual defamed to bring it under the cognizance of a court of law, the privileges of the House were at an end. There was one advantage which the discussion had obtained. No man on that night, or in the last debate, contended that the judgment of the Court of Queen's Bench was a proper judgment. He had the authority of the Attorney and Solicitor general of the present Government; of the Attorney and Solicitor general of the last Government; he had the authority of his right hon. Friend who had filled the office of Lord Chancellor of Ireland; he had the authority of his learned Friend the Member for Bandon, and of the right hon. Recorder for Dublin, himself acting in a judicial capacity; he had the authority of all these eminent men, some of whom questioning the propriety of the proceedings

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of the House in a subsequent stage, to confirm his view, for they all admitted, that the judgment of the Court of Queen's Bench could not be maintained. Even his hon. and learned Friend, who was the chief advocate of the conduct of the courts, admitted that the judgment could not be maintained, but thought, that when an individual was defamed by the House, the public ought to provide compensation. That was to say, his hon. Friend maintained this position, that those Ministers of the Crown who were concerned in the frauds of the South Sea scheme, and who were guilty of the misconduct exposed in Parliament, had a right, because they were libelled, to claim compensation from the public. How could his hon. Friend shrink from that conclusion? The law knew nothing of public stations and officers. If a man, libelled by the publications of that House, had a right to maintain an action, it mattered not whether he stood in a public or private capacity; and every Minister, however unjustifiable his conduct, every judge of the Court of Admiralty, and every officer condemned by an inquiry instituted by that House, had a right to demand compensation for all libels on his character. And if the judgment were erroneous, and if the privileges which he and others contended for, were essential to the proper performance of their functions, were they surprised that measures should be resorted to which partook of severity, and of an extraordinary character, when told they must submit their privileges to the decision of a court of law, and when the court of law told them, "By our decision your privileges are placed in the utmost jeopardy?" He contended the House acted throughout with great moderation. They went twice to the Court of Queen's Bench; and, on an application by Mr. Stockdale, the Lord Chief Justice interrupted the Attorney-general in his argument, on the ground that no public authority had a right to sanction such a publication as that complained of. If the position held good, that was laid down in the second judgment could be maintained, then not only the privilege of free publication, but every other essential to the due performance of their functions, would be endangered. He declared with the sincerity of an intimate conviction, that if the judgment could be maintained, he would not give ten years' purchase for the privilege of
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freedom of debate. He thought, that the privilege of free publication could be depended upon, on much stronger grounds than even that of free debate. There was no ground upon which one rested, upon which the other also did not depend. There was the prescription of two centuries. It might be argued with great force, that there were reasons for free publication which did not apply to freedom of debate—it might be said, that the one was the Act of the House of Commons in its collective capacity, and that there could be no possible presumption of malice when the House had ordered a publication. But with respect to the other privilege, it might be the act of an individual Member to gratify his private spleen and malignity, and shielding himself under the privilege of free debate. Suppose the Court of Queen's Bench were to question this privilege of freedom of debate, how would they act? Would they acquiesce? Would they appeal? Would they go to a Court of Error—to the House of Lords, to ascertain whether they had that privilege or not? Suppose the Court were to inquire upon what terms they held that privilege. He found that in 1837 the Speaker made a speech to the Throne, claiming all the ancient rights and privileges of the House, particularly freedom from arrest and liberty of speech. Suppose, then, a judge were to say, "This cannot be a statutory privilege, or the House of Commons would not, at the commencement of each session, pray the Crown to allow it to them; and a resolution of the House of Commons cannot contravene the general law. Here is a manifest case of abuse. A Member has acted under cover of privilege, with a feeling of private malignity, to the injury of an individual, and we maintain, with the judges of the Queen's Bench in former days, that Members of the House of Commons are liable to be questioned, if they exceed the proper limits of debate." Taking, then, that view of the case—if the House were not to be the judges of that merely political question, whether free publication of papers was necessary, he would ask, could they claim the privilege of free debate? Suppose the freedom of debate depended upon the presumption that the proceedings of the House were secret—suppose a judge were to take cognizance of that rule of the House which requires the Serjeant-at-Arms to

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take strangers in the gallery into custody, and were to say he inferred from that rule that parliamentary proceedings were to be secret, and consequently that no Member had a right to malign and defame the private character of individuals in the presence of those who, by the connivance of Members, were admitted. He would say, that a much more plausible argument might thus be maintained for denying the freedom of debate, abused as it might be, and perverted to the purposes of private malignity than could be urged against the publication of papers by the House of Commons, against whom as a body no presumption of malice could possibly exist what course, then, should the House pursue when there was obvious danger that they would hold all their privileges at the mercy of the courts of law? What but the independent maintenance of their privileges? If the House had been wrong in their proceedings in committing the plaintiff, and the attorney, and the sheriffs, it would not be only the superior courts that would have the jurisdiction—it would not only be those eminent and venerable authorities in Westminster-Hall who would judge of the privileges of the House of Commons. The House would not hold their privileges at the mercy of them alone, but at the mercy of every court in the kingdom, however inferior. Mr. Justice Littledale had said that "a publication sent out to the world, though in pursuance of the orders of the House, became separated from the House; and the agents of the House, that was the printers, acted upon their own responsibility." That was to say, that the House had no power to protect its own officers, though the Bill of Rights said that the proceedings in the House could not be questioned out of the House, in the same paragraph in which freedom of debate was protected. But the judges had maintained, that though proceedings in Parliament could not be questioned, yet, if the House made such an order as this—that certain documents should be published for the public information—that the printer, acting under the authority of the House, and in consequence of directions given to him by proceedings in Parliament, had no authority which did not belong to any publisher in any street in London. Mr. Justice Littledale went on to say, that he admitted, if his opinion were correct, the same question might be
66
agitated in inferior courts—such as the quarter sessions and the borough courts. Were the judges right in saying that this power, appertaining to the judges of the Queen's Bench, was shared in an equal degree by every inferior court in the country? If that were so, was not the House equally bound by the decision of those inferior courts? It would be vain to say that the judges of these courts were not so learned, so experienced, as the judges of the Queen's Bench—they would be equal in point of power, and the next step would be that the House of Commons would hold its privileges subject to be questioned by every inferior court in the country. And suppose the inferior courts decided against the House. There was an impression made by the dignity and solemnity of the proceedings of the Court of Queen's Bench; to a county or a borough court belongs nothing of these grave paraphernalia, nothing of the eminent character for learning belonging to the superior judges—still their decisions were to be equally binding. Suppose ten actions were brought, and damages awarded, the House could not plead its privilege against them any more than in the superior courts. The bailiff might be an inferior man, but it was not the inferiority of station that was to exempt him from that sympathy which some hon. Members were disposed to evince towards the sheriffs. Could the House of Commons exist if every inferior court in the country could exercise jurisdiction over it? He would ask another question; he had been hitherto considering the case with respect to civil actions only. Suppose the proceeding against the printer had been by criminal indictment in one of the inferior courts. It might be said, in civil actions, "You can appeal to the quarter sessions—to the court above—to the fifteen judges—then to the House of Lords." But was there any appeal in criminal cases? Twice the judges of the Court of Queen's Bench had decided against them. If the case had gone by appeal to the House of Lords, he believed that the constitution of England would have been destroyed in one of its most vital and essential points. An appeal had been made to the House on the hardship of committing men like the sheriffs, guilty of no moral crime. To that appeal he answered by simply referring to the case of Mr. Hansard who had

67
been guilty of no moral crime. Mr. Hansard was unable to exercise any discretion; he was ordered by the House of Commons, through the Speaker, to publish, and he acted according to the usages of the House. If Mr. Hansard had had no property, would he not have been in custody at that very moment. He could not regret, in the difficult situation in which the House was placed, having two decisions of the Queen's Bench against them, and seeing the consequences of acquiescence in those decisions, that the House had determined to exercise every power which the law and Constitution gave them, for the purpose of vindicating their privileges. If they had abstained from exercising their power, and had gone into the superior courts, he believed that their other privileges would have been placed in ten times greater jeopardy than they were at present. They had proved to two ministerial agents of the court that they had the unquestioned power to commit. Further, had the House the power to prevent payment of damages? If they could convince him that they had power, without this actual collision, which many perhaps might desire, by putting the posse comitatus against the army—of preventing the payment of damages, he should be disposed to rest where they were. The Solicitor-general had said something about an adjournment instead of a prorogation. That might serve for a certain period, but they could not, without the violation of the Constitution introduce perpetual adjournments. He believed they were now arrived at that point when her Majesty's Ministers must, as an united Government, submit to the House some comprehensive course for extricating them from the difficulty. He repented of nothing he had done or said. He would repeat, for the special benefit of the hon. Member for Finsbury, his former assertion, that if they were not to possess this power without liability to question, he would not remain a Member of the House of Commons, and he should advise the House of Commons to shut their doors and abdicate their functions. He would not object to a declaratory act which, if passed immediately, would have the effect of stopping the action that had just been commenced. An enabling bill would admit that they had not the inherent power. If the House were to remain passive, the action brought by Stockdale for his infa-
68
mous publication which is called a libel would proceed, and the jury, acting upon the principle of the last, might advance the damages from 600 l. to 6,000 l. The House must consider what was to be done with actions that might hereafter be brought. If they refused to plead, there was no possibility of preventing the consequence: the Court of Queen's Bench would order the payment of damages, however heavy. Should they then plead? He for one said, no: he could not advise the House to that course. The noble Lord had suggested the course of pleading, and then committing the plaintiff and the attorney. But they could not plead without involving the necessity of making the House of Lords the court of appeal in the last resort. He came to one of two conclusions—either to persevere in the present course, or attempt by a declaratory bill to maintain their powers and render them more efficient. He hoped the noble Lord, in communicating with the Lord Chancellor and the other legal authorities, would maturely consider this point. He should be sorry to cause the least embarrassment to the noble Lord in his course, throughout which he believed he had been actuated by an earnest and sincere desire to maintain the privileges of the House. The noble Lord was responsible for the peace of the country; and if the noble Lord told them he hoped to pass a bill which should make our powers more complete, that course should meet with his (Sir R. Peel's) concurrence. But if they could not pass a declaratory bill, then he, for one, saw no alternative but that of persevering in the attempt by their own power to preserve their privileges, and trust to the influence of public opinion, and the conviction of the public mind that they could be influenced by no personal motives, but that they were struggling for the privileges of the people of England, committed to this House in trust for the community at large.
Mr. Darbyscarcely understood what course the right hon. Baronet the Member for Tamworth proposed. It appeared to him that he was going to give a conditional vote; for he had said, that if a declaratory bill were passed, then he would consent to liberate the sheriffs. Now, he asked the House whether it was right that the question of detaining the sheriffs in custody should depend upon the success of that proposed measure? The noble

69
Lord opposite, too, said, that he was prepared to bring in a bill; but his reason for not consenting to the liberation of the sheriffs now was, that he should like to see whether that measure was likely to succeed, so that if that bill were not carried into law, he might fall back upon the sheriffs; but was that a course which the House would approve? He would not detain the House; but he asked whether any hon. Member had heard one reason for detaining the sheriffs in custody?
The House divided on the question that the sheriffs be discharged.—Ayes 94; Noes 165: Majority 71.

List of the AYES.

Acland, T. D.

Law, hon. C. E.

Arbuthnott, hon. H.

Liddell, hon. H. T.

Archdall, M.

Lincoln, Earl of

Ashley, Lord

Litton, E.

Attwood, W.

Lowther, J. H.

Attwood, M.

Mackenzie, T.

Baillie, Colonel

Mackenzie, W. F.

Bentinck, Lord G.

Mahon, Viscount

Blackstone, W. S.

Nicholl, J.

Bolling, W.

Ossulston, Lord

Broadley, H.

Pakington, J. S.

Bruges, W. H. L.

Pattison, J.

Cresswell, C.

Pemberton, T.

Dick, Q.

Perceval, Colonel

Dowdeswell, W.

Polhill, F.

Duke, Sir J.

Pollen, Sir J. W

Duncombe, T.

Pollock, Sir F.

Duncombe, hon. A.

Praed, W. T.

Duncombe, hon. W.

Pringle, A.

Eaton, R. J.

Pusey, P.

Eliot, Lord

Richards, R.

Filmer, Sir E.

Rolleston, L.

Filzroy, hon. H.

Round, J.

Follett, Sir W.

Rushbrooke, Colonel

Forester, hon. G.

Rushout, G.

Gladstone, W. E.

Scarlett, hon. J. Y.

Godson, R.

Shaw, right hon. F.

Grimsditch, T.

Sheppard, T.

Halford, H.

Shirley, E. J.

Hamilton, Lord C.

Sibthorp, Colonel

Hawkes, T.

Smyth, Sir G. H.

Herries, rt. hon. J. C.

Somerset, Lord G.

Hodgson, F.

Stanley, E.

Holmes, W.

Style, Sir C.

Hope, G. W.

Sugden, rt. hon. Sir E.

Hotham, Lord

Talfourd, Sergeant

Houldsworth, T.

Tennent, J. E.

Hughes, W. B.

Thompson, Alderman

Humphery, J.

Verner, Colonel

Hurt, F.

Vivian, J. E.

Ingestrie, Viscount

Walsh, Sir J.

Inglis, Sir R. H.

Williams, R.

Jackson, Sergeant

Wood, Sir M.

James, Sir W. C.

Wood, Colonel

Jones, J.

Wood, Colonel T.

Jones, Captain

Kemble, H.

TELLERS.

Knightley, Sir C.

Kelly, F.

Knox, hon. T.

Darby, G.

70

List of the NOES.

Aglionby, H. A.

Hayter, W. G.

Aglionby, Major

Heathcoat, J.

Alston, R.

Hill, Lord A. M. C.

Anson, hon. Colonel

Hobhouse, T. B.

Archbold, R.

Hollond, R.

Baines, E.

Hope, hon. C.

Baring, rt. hon. F. T.

Howard, Sir R.

Barnard, E. G.

Howick, Viscount

Barron, H. W.

Hume, J.

Barry, G. S.

Hurst, R. H.

Beamish, F. B.

Hutt, W.

Bellew, R. M.

Hutton, R.

Berkeley, hon. C.

James, W.

Bernal, R.

Jervis, J.

Bewes, T.

Labouchere, rt. hn. H.

Blair, J.

Lambton, H.

Blake, M. J.

Lascelles, hon. W. S.

Blake, W. J.

Lemon, Sir C.

Bridgeman, H.

Loch, J.

Broadwood, H.

Lockhart, A. M.

Brocklehurst, J.

Lushington, C.

Brodie, W. B.

Lushington, rt. hn. S.

Brotherton, J.

Macaulay, rt. hn. T. B.

Browne, R. D.

Macleod, R.

Busfeild, W.

M'Taggart, J.

Callaghan, D.

Marshall, W.

Campbell, Sir J.

Maule, hon. F.

Cavendish, hon. C.

Melgund, Visct.

Chetwynd, Major

Milnes, R. M.

Clay, W.

Morpeth, Viscount

Clerk, Sir G.

Morris, D.

Clive, E. B.

Muntz, G. F.

Collier, J.

Murray, A.

Collins, W.

Muskett, G. A.

Courtennay, P.

Nagle, Sir R.

Craig, W. G.

Noel, hon. C. G.

Currie, R.

Norreys, Sir D. J.

Curry, Sergeant

O'Brien, W. S.

Dalmeney, Lord

O'Callaghan, hon. C.

Divett, E.

O'Connell, D.

Duff, J.

O'Connell, J.

Dundas, F.

O'Connell, M. J.

Dundas, Sir R.

O'Connell, M.

Du Pre, G.

O'Ferrall, R. M.

Elliot, hon. J. E.

Oswald, J.

Ellice, right hon. E.

Paget, Lord A.

Ellis, J.

Paget, F.

Ellis, W.

Palmerston, Viscount

Evans, W.

Parker, J.

Ewart, W.

Parnell, rt. hn. Sir H.

Fleetwood, Sir P. H.

Peel, rt. hon. Sir R.

Gillon, W. D.

Pendarves, E. W. W.

Goulburn, rt. hon. H.

Philips, M.

Graham, rt. hn. Sir J.

Pigot, D. R.

Grattan, J.

Pryme, G.

Greig, D.

Ramsbottom, J.

Grey, rt. hon. Sir C.

Redington, T. N.

Grey, rt. hon. Sir G.

Rich, H.

Guest, Sir J.

Roche, E. B.

Harcourt, G. G.

Roche, W.

Hardinge, right hon. Sir H.

Rumbold, C. E.

Russell, Lord J.

Harland, W. C.

Rutherfurd, rt. hn. A.

Hastie, A.

Salwey, Colonel

Hawes, B.

Seymour, Lord

71

Sheil, rt. hon. R. L.

Villiers, hon. C. P.

Smith, J. A.

Walker, R.

Somers, J. P.

Wallace, R.

Somerville, Sir W. M.

Warburton, H.

Stanley, E. J.

Wilde, Mr. Serjeant

Stansfield, W. R. C.

Williams, W.

Staunton, Sir G. T.

Williams, W. A.

Stuart, Lord J.

Winnington, Sir T. E.

Stuart, W. V.

Winnington, H. J.

Stock, Dr.

Wood, C.

Strickland, Sir G.

Wood, G. W.

Strutt, E.

Wood, B.

Tancred, H. W.

Wynn, rt. hn. C. W.

Teignmouth, Lord

Wyse, T.

Thornely, T.

Yates, J. A.

Townley, R. G.

Young, J.

Troubridge, Sir E. T.

Tufnell, H.

TELLERS.

Turner, E.

Steuart, R.

Vigors, N. A.

Fremantle, Sir T.

On the motion of Lord John Russell, the clerk read the petition of the Messrs. Hansard, relative to a fresh action which had been commenced.
Lord J. Russellsaid, I propose now to take the same course with regard to this action as I took with respect to that of the 1st of August, 1839. In that case the House determined that the report and minutes had been published by order of the House, and directed the Messrs. Hansard not to take any steps towards defending that action. It is clear to me, though I have stated my opinion as to the necessity for a declaratory bill, that this is the only course which in the meantime we can take, and I therefore move—"That the Messrs. Hansard be directed not to appear or plead to the action with notice of which they have been served."
Sir E. Sugdensaid, that he would move as an amendment, the notice which stood first on the paper—"That the Messrs. Hansard be at liberty to defend the action, as they may be advised, not involving the privileges of this House." He could explain his object in a few words. They must either plead their privilege as before in bar of the action, or plead the nature of the work itself, as had been done in the first action, when the question went to the jury, whether it was an obscene work, and they found that it was; and Stockdale consequently recovered no damages, though in that action their privileges were considered no bar. After the course which had already been taken by the House, after they had pleaded, and retired when the decision was against them, and then pursued the ministerial officers, the plaintiff and his attorney, on
72
the ground that they would not allow the courts to judge of their privileges, he could not ask the House to be so inconsistent as to go back to the Court and plead their privileges again. The noble Lord proposed the same course as had been taken in that action, in which, in spite of all their endeavours, they had heard that night, that the damages had been paid into the pocket of Mr. Stockdale, and it was quite certain that they could never get them out again. The country then must pay; but he begged to state, that he should on every occasion oppose any attempt to charge the country with any other costs and damages in actions which they had thought proper not to defend. They might imprison as many persons as they pleased, but still the damages would be levied, and the jury, feeling as indignant as the House, might probably give a verdict for 10,000 l. in the next action. The Messrs. Hansard had a perfectly good defence, independent of the privileges of the House; why, then, should they not be allowed to plead it? It was only the conduct of that House which enabled Stockdale to bring those actions.
Sir W. Follett, in voting against the proposition of the noble Lord, would express his dissent to it as loudly as he could. If judgment were to go by default, damages would be given, and they would again have to pursue the same course as they had now taken; but the money would get into Mr. Stockdale's hands. The noble Lord had admitted that he was aware that by the present course they could not vindicate their privileges; and if a bill were to be introduced, what could be the object of taking the course proposed by the noble Lord? It would not help the progress of any bill. He said, on the contrary, "Plead to the action; and if he were asked what that plea was to be, he would say, that Messrs. Hansard should plead, "we made that publication by the order of the House of Commons." If they did not plead, what would be the result? They would have no bill—there would be a levy for the damages, and the sheriffs, and attorney, and plaintiff must be again committed. Surely then it would be better to plead. He would not indeed recommend the plea suggested by his right hon. Friend; but he said, let them plead, that Messrs. Hansard had published this with the authority of the House, and ask the

73
Court of Queen's Bench to give the judgment which they said was right. He certainly would vote against the allowing the judgment to go by default, and yet he could not vote for the modified motion of his right hon. Friend. He hoped, that the noble Lord would re-consider his course, and would not again embark in the same difficulties in which they were now involved.
The Attorney-Generalwas not aware that he need say one word upon this question, since the two learned Gentlemen had completely answered each other. The first right hon. Gentleman said, that if they pleaded again in bar, they would be the laughing-stock of the whole world. He agreed with the hon. Member for Ripon, that they would be laughed at if they again instructed their Attorney-General to plead their privileges at bar in the Court of Queen's Bench. What, then, did the right hon. Gentleman propose to do? To leave Messrs. Hansard to do what they could in defence of an action brought against them for what they had done by the authority of that House. It was said, indeed, that in this case, there was no libel, because it was true. One jury had so concluded, and another might do the same. But what was to become of the next action against Messrs. Hansard for publishing something that might be perfectly true, and yet not capable of strict proof.—[Sir Edward Sugden confined his motion to this action.]—Then there must be a Committee every time, to consider the validity of the proof of veracity. It was indeed easy to point out the difficulties which would arise from not appearing and pleading. But what was their other alternative? The hon. Member for Exeter admitted that the course recommended by the right hon. Gentleman, the Member for Ripon could not be adopted; and the right hon. Gentleman, the Member for Ripon said, that they could not plead the privileges of the House. The only coarse was to refuse to plead, as they had done in the case of Polack. He hoped that means would be found to settle the question on constitutional terms, and that such persons as Mr. Stockdale, should be prevented from obtaining damages. There was, he admitted, peril on the one side, but there was certain destruction on the other, and it was better to risk that peril than to allow the total destruction of those privileges which had been
74
handed down to them from their ancestors.
The House divided on the original motion.—Ayes 148; Noes 58: Majority 90.

List of the AYES.

Aglionby, H. A.

Hollond, R.

Aglionby, Major

Hope, hon. C.

Alston, R.

Howard, Sir R.

Anson, hon. Colonel

Howick, Viscount

Archbold, R.

Hughes, W. B.

Baines, E.

Hume, J.

Baling, rt. hon. F. T.

Hurst, R. H.

Barnard, E. G.

Hutt, W.

Barry, G. S.

Hutton, R.

Beamish, F. B.

James, W.

Bellew, R. M.

Labouchere, rt. hon. H.

Berkeley, hon. C.

Lambton, H.

Bernal, R.

Lascelles, hon. W. S.

Bewes, T.

Lemon, Sir C.

Blair, J.

Loch, J.

Blake, M. J.

Lockhart, A. M.

Blake, W. J.

Lushington, C.

Bridgeman, H.

Lushington, rt. hon. S.

Broadwood, H.

Macaulay, rt. hn. T. B.

Brocklehurst, J.

Macleod, D.

Brotherton, J.

M'Taggart, J.

Busfield, W.

Marshall, W.

Callaghan, D.

Melgund, Viscount

Campbell, Sir J.

Milnes, R. M.

Cavendish, hon. C.

Morpeth, Viscount

Clay, W.

Muntz, G. F.

Clerk, Sir G.

Murray, A.

Clive, E. B.

Muskett, G. A.

Collier, J.

Noel, hon. C. G.

Collins, W.

Norreys, Sir D. J.

Craig, W. G.

O'Brien, W. S.

Currie, R.

O'Callaghan, hon. C.

Curry, Mr. Sergeant

O'Connell, D.

Dalmeny, Lord

O'Connell, J.

Divett, E.

O'Connell, M. J.

Duff, J.

O'Connell, M.

Dundas, F.

O'Ferrall, R. M.

Dundas, Sir R.

Oswald, J.

Du Pre, G.

Paget, Lord A.

Elliot, hon. J. E.

Paget, F.

Ellice, E.

Palmerston, Viscount

Ellis, J.

Parker, J.

Ellis, W.

Parnell, rt. hn. Sir H.

Evans, W.

Peel, rt. hon. Sir R.

Ewart, W.

Pendarves, E. W. W.

Fleetwood, Sir P. H.

Philips, M.

Freemantle, Sir T.

Pigot, D. R.

Gillon, W. D.

Pryme, G.

Goulbourn, rt. hon. H.

Ramsbottom, J.

Graham, rt. hn. Sir J.

Redington, T. N.

Grey, rt. hon. Sir C.

Rich, H.

Grey, rt. hon. Sir G.

Roche, E. B.

Guest, Sir J.

Roche, W.

Harland, W. C.

Rumbold, C. E.

Hastie, A.

Russell, Lord J.

Hawes, B.

Rutherfurd, rt. hn. A.

Hayter, W. G.

Salwey, Colonel

Heathcoat, J.

Seymour, Lord

Hill, Lord A. M. C.

Sheil, rt. hon. R. L.

Hobhouse, T. B.

Smith, J. A.

75

Somers, J. P.

Walker, R.

Somerville, Sir W. M.

Wallace, R.

Stanley, hon. E. J.

Warburton, H.

Stansfield, W. R. C.

Wilde, Sergeant

Stuart, W. V.

Williams, W.

Stock, Dr.

Williams, W. A.

Strickland, Sir G.

Winnington, H. J.

Strutt, E.

Wood, C.

Tancred, H. W.

Wood, G. W.

Teignmouth, Lord

Wood, B.

Thornley, T.

Wynn, rt. hon. C. W.

Townley, R. G.

Wyse, T.

Troubridge, Sir E. T.

Young, J.

Tufnell, H.

TELLERS.

Turner, E.

Maule, F.

Vigors, N. A.

Steuart, R.

List of the NOES.

Acland, T. D.

Litton, E.

Archdall, M.

Lowther, J. H.

Attwood, W.

Mackenzie, T.

Attwood, M.

Mahon, Viscount

Bentinck, Lord G.

Nicholl, J.

Blackstone, W. S.

Ossulston, Lord

Bruges, W. H. L.

Pakington, J. S.

Courtenay, P.

Pemberton, T.

Cresswell, C.

Perceval, Colonel

Dick, Q.

Polhill, F.

Duncombe, hon. A.

Pringle, A.

Eaton, R. J.

Richards, R.

Eliot, Lord

Round, J.

Filmer, Sir E.

Rushbrooke, Colonel

Fitzroy, hon. H.

Shaw, right hon. F.

Follett, Sir W.

Sheppard, T.

Forester, hon. G.

Sibthorp, Colonel

Gladstone, W. E.

Stanley, E.

Hamilton, Lord C.

Style, Sir C.

Herries, rt. hn. J. C.

Sugden, rt. hn. Sir E.

Holmes, W.

Talfourd, Sergeant

Hope, G. W.

Tennent, J. E.

Ingestrie, Viscount

Thompson, Alderman

Jackson, Sergeant

Verner, Colonel

Kelly, F.

Williams, R.

Kemble, H.

Wood, Sir M.

Knightly, Sir C.

Wood, Colonel

Knox, hon. T.

TELLERS.

Law, hon. C. E.

Inglis, Sir R. H.

Lincoln, Earl of

Godson, R.

Lord John Russell Lord John Russell moved, that John Joseph Stockdale, having commenced another action against Messrs. Hansard in respect of a publication ordered by that House, had been guilty of a high contempt and breach of the privileges of the House.
Mr. Lawsubmitted that this motion could not properly be put to the House until it had received further evidence in the case. He would propose that Stockdale be called to the Bar, and be allowed the opportunity of making any statement, or offering any thing in explanation, that he might think proper. This at least was due to Stockdale before the House adopted
76
the proceeding of changing his custody and committing him to Newgate. Entertaining this feeling, he begged to move, as an amendment, that Mr. Stockdale be called to the bar on Tuesday next.
Sir Edward Sugdenasked, whether it were competent to the House to vote a man guilty of a breach of its privileges in a matter of this kind, without calling him to the Bar, and without any evidence.
The Speakerobserved, that it was clearly competent to the House to proceed, if it were satisfied that Stockdale was the plaintiff in the action.
Lord John Russellremarked, that there was much more evidence in this case than in the case of Sir John Hobhouse, when that right hon. Gentleman was called before the House.
The House divided—Ayes 132; Noes 34: Majority 98.

List of the AYES.

Aglionby, H. A.

Fleetwood, Sir P. H.

Aglionby, Major

Fremantle, Sir T.

Alston, R.

Gillon, W. D.

Anson, hon. Colonel

Graham, rt. hn. Sir J.

Archbold, R.

Grey, rt. hn. Sir C.

Baines, E.

Grey, rt. hn. Sir G.

Baring, rt. hon. F. T.

Harland, W. C.

Barnard, E. G.

Hawes, B.

Barry, G. S.

Heathcoat, J.

Beamish, F. B.

Hill, Lord A. M. C.

Bernal, R.

Hobhouse, T. B.

Bewes, T.

Hollond, R.

Blair, J.

Hope, hon. C.

Blake, M. J.

Howard, Sir R.

Blake, W. J.

Howick, Viscount

Bridgeman, H.

Hughes, W. B.

Broadwood, H.

Hume, J.

Brocklehurst, J.

Hutt, W.

Brotherton, J.

Hutton, R.

Busfield, W.

Jackson, Serjeant

Callaghan, D.

Labouchere, rt. hn. H.

Campbell, Sir J.

Lambton, H.

Cavendish, hon. C.

Loch, J.

Clay, W.

Lockhart, A. M.

Clerk, Sir G.

Lowther, J. H.

Collier, J.

Lushington, C.

Collins, W.

Lushington, right hn. T. S.

Courtenay, P.

Craig, W. G.

Macaulay, right hon. T. B.

Currie, R.

Curry, Sergeant

M'Leod, R.

Dalmeny, Lord

M'Taggart, J.

Duff, J.

Marshall, W.

Dundas, F.

Maule, hon. F.

Dundas, Sir R.

Melgund, Viscount

Du Pre, G.

Milnes, R. M.

Elliot, hon. J. E.

Morpeth, Viscount

Ellis, J.

Muntz, G. F.

Ellis, W.

Murray, A.

Evans, W.

Muskett, G. A.

Ewart, W.

Noel, hon. C. G.

77

Norreys, Sir D. J.

Somerville, Sir W. M.

O'Brien, W. S.

Stansfield, W. R. C.

O'Callaghan, hon. C.

Stock, Dr.

O'Connell, D.

Strickland, Sir G.

O'Connell, J.

Strutt, E.

O'Connell, M. J.

Sugden, rt. hn. Sir E.

O'Connell, M.

Tancred, H. W.

O'Ferrall, R. M.

Teignmouth, Lord

Paget, Lord A.

Thornely, T.

Paget, F.

Troubridge, Sir E. T.

Palmerston, Viscount

Tufnell, H.

Parker, J.

Turner, E.

Parnell, rt. hn. Sir H.

Vigors, N. A.

Peel, rt. hn. Sir R.

Wallace, R.

Pendarves, E. W. W.

Warburton, H.

Pigot, D. R.

Wilde, Serjeant

Ramsbottom, J.

Williams, W.

Redington, T. N.

Williams, W. A.

Rich, H.

Winnington, H. J.

Roche, W.

Wood, G. W.

Rushbrooke, Colonel

Wood, B.

Russell, Lord J.

Wynn, rt. hon. C. W.

Rutherfurd, rt. hn. A.

Wyse, T.

Salwey, Colonel

Young, J.

Seymour, Lord

Sheil, rt. hn. R. L.

TELLERS.

Smith, J. A.

Steuart, R.

Somers, J. P.

Stanley, E. J.

List of the NOES.

Acland, T. D.

Mackenzie, T.

Attwood, W.

Nicholl, J.

Attwood, M.

Pemberton, T.

Blackstone, W. S.

Perceval, Colonel

Bruges, W. H. L.

Polhill, F.

Cresswell, C.

Pryme, G.

Darby, G.

Richards, R.

Duncombe, hon. A.

Sheppard, T.

Eliot, Lord

Sibthorp, Colonel

Filmer, Sir E.

Talfourd, Sergeant

Fitzroy, hon. H.

Tennent, J. E.

Hamilton, Lord C.

Thompson, Alderman

Hope, G. W.

Verner, Colonel

Ingestrie, Viscount

Williams, R.

Kelly, F.

Wood, Colonel

Kemble, H.

Knox, hon. T.

TELLERS.

Lincoln, Earl of

Inglis, Sir R. H.

Litton, E.

Law, hon. C. E.

Lord J. Russell Lord J. Russell moved, that John Joseph Stockdale be committed to Newgate.
Motion agreed to.