HC Deb 14 February 1840 vol 52 cc299-306
Mr. Alderman Thompson

called the attention of the House to the case of Mr. W. Evans, whose health had materially suffered from his imprisonment from close confinement, and from the nature of the room in which he was placed. If his imprisonment were continued much longer, it was impossible to say what serious consequences might follow. The privileges of the House had been fully satisfied, inasmuch as the Court of Queen's Bench had decided that the return to the writ of habeas corpus was sufficient. Another ground of his motion was the admission of the great defect of the law of Parliament on this question, and of the necessity for a declaratory bill. It was impossible that the present state of things could be allowed to continue—that the sheriffs must be punished either by that House for the discharge of an ordinary official duty, or by the Court of Queen's Bench for omitting to discharge it. They had been led to expect that a declaratory bill would be introduced into that or the other House; if not, what was the consequence? A writ of inquiry had been left with the sheriffs, ordering them to summon a jury to assess the damages, which were laid at 50,000l., by Thursday next. If they did not execute that writ, they would be committed for contempt by the Court of Queen's Bench; or, if they did, the same fate would await them from that House. It had been said out of doors that one purpose for which the sheriff was continued in confinement was to ascertain the feeling of the other House. He did not believe it; but there was a strong expression abroad to that effect. The sheriffs had been charged as contumacious in pre- senting a petition to the House of Lords; but their only object was to make the House of Lords acquainted with the circumstances, in order that that might lead to a conference between the two Houses, and that some bill might be brought in declaratory of the state of the law. The hon. Member concluded by moving "that the authority of this House having been vindicated, it is the opinion of this House that its privileges may be best maintained by the present discharge of Mr. Sheriff Evans from the custody of the Sergeant-at-Arms."

Mr. Darby

seconded the motion. On what grounds did they detain that Gentleman? Did they keep him as a sort of hostage for the safe custody of their declaratory bill? The law officers of the Crown, knowing that actions were going on, ought to have been prepared the other night to state the course which they proposed to pursue. In what a situation were the sheriffs placed by that want of decision. If they intended to carry out their principle, they ought to stop the action at every stage—certainly before it reached the sheriffs. When the noble Lord had said that it was impossible to stop these actions, and that it was necessary that a declaratory bill should be passed, from that moment they ought to have discontinued their proceedings against individuals. Did the noble Lord still propose to introduce a measure? If so, there was no reason for detaining this gentleman. They had no right to treat him as a hostage; and the noble Lord having stated that it was impossible to vindicate the privileges of the House through the sheriffs, their imprisonment ought now to cease. The Solicitor-general had stated, that if the Government did not carry out his course, he would vote for the instant relief of the sheriffs. Was he not as strictly bound by that declaration as any pledge could bind him? But the hon. and learned Gentleman had not redeemed his pledge; and he (Mr. Darby) was glad that he had now the opportunity of redeeming it.

Lord John Russell

had nothing to say on this motion, except with reference to what had fallen from the hon. Gentleman who had spoken last. He conceived the state of the case to be this: they were endeavouring to vindicate the power of printing and publishing their proceedings; that power wag interfered with by what bad taken place, and in consequence of that interference, the House had voted the sheriffs guilty of a breach of the privileges of the House. How, then, could it be said, that their privilege had been vindicated without the power of maintaining the publication and the printing. He could not see the force of the argument of the hon. Alderman, that the privilege had been now established, and that if the question again came before the Court of Queen's Bench, that court would not now interfere. He had stated, on former occasions, that the power of the House was sufficient to vindicate its privileges; he had always said that the House had the power, but it was a power of such a nature, that its exercise would create public inconvenience, and therefore it was, that he had said also that other measures might be desirable. He had not said so from any want of power in the House, or from any doubt of the justice of their proceedings, but on account of the public injury and inconvenience which might follow from the exercise of their powers, because, as the powers of the House had been exercised in former times, when there was less clashing of interests, they had been found ample. As to the point which had been urged of compassion, the question was, whether they could maintain, by their own power and authority, their own privileges, without committal. If they could maintain them without, they might consistently indulge their feelings of compassion. But they had no right otherwise to indulge their compassion. He would put the case the other way. If the judges should issue an order, and if the persons to whom such order was directed should disobey it, would the judges yield to any sentiment of compassion? Would they not issue an attachment, or make a rule absolute, or take some other steps out of any compassion? No; they would state what was their power and authority, but they would not admit that what was necessary to maintain their power as a court of justice, should be given up out of any such feeling; and if the courts of law would not do this, he did not see why the House of Commons, when its privileges of great importance were at stake, should give up those privileges from a feeling of compassion. He would give the present motion his decided opposition.

Sir Edward Sugden

said, that if the noble Lord intended to keep the sheriff till the House should be able to exercise its privileges free and undisturbed, he would uproot the law of the country; for if the noble Lord were prepared to keep the sheriff in custody till the privileges of the House should be free and undisturbed, he was prepared to go as far as the Solicitor-general, and as far as the power of the House would extend, to make the imprisonment perpetual. The noble Lord said, that no mercy was shown by the courts of law, but those courts could show no mercy; those courts were bound to administer the law, and to exercise their power under an oath. Here, however, the sheriffs were placed in a conflict which they had not sought, and the House would commit them if they did a particular act, and the courts of law would commit them if they did not. He had himself a motion which he intended to bring before the House when the present motion should be disposed of, and as he must divide upon his motion, he would now state the grounds why they ought to rescind the resolution to which they had come, ordering the sheriffs to repay the money to Messrs. Hansard. The first ground was the illegality of the original order, upon this clear and manifest ground, that what the House had done, in ordering the sheriffs to pay the money, was, in truth, imposing a fine upon the sheriffs. They had no power directly to impose a fine, and they ought not to do indirectly that for which they had no direct power. The money had been already paid to Mr. Stockdale, to whom the Chief Justice stated most justly, that it belonged as much as the estate of any Gentleman in that House belonged to him; and if the House of Commons enforced the order to which it had come, the sheriffs would have to pay the money out of their own pockets, because they had already paid it, and they would have to pay it again to Messrs. Hansard. They would thus, in fact, fine the sheriffs, and break one of the main principles of the constitution. This ground would probably be disregarded, but the next which he would submit would be, that the circumstances had changed, and he was sure that the House would feel the justice of this reason. When they ordered the two persons, who were in fact one officer, to pay the money, they had both in custody, and the money would come from the pockets of each, probably in equal proportions; the House had since discharged one of those persons, and the order could be enforced against him only by taking him again into custody; they might incarcerate the discharged sheriff, but if they did so, the noble Lord would only place himself and the House in a ten times more painful situation than at present. Having then discharged the one sheriff, could they equitably retain the other, and make him pay the whole 640l.? On these grounds he should have thought that the noble Lord would have considered, that the proper time had arrived for the release of the second sheriff. The difficulties were only accumulating. The sheriffs were asking the noble Lord how to act, one under-sheriff had received the writ of enquiry, and he would be compelled to execute it unless he was saved from the power of the Court of Queen's Bench. Punished by one or the other he must be. The House had not the power to defend him, and imprisoned he must be; and his only choice was, by which authority it was to be. The under-sheriff, then, would sit to execute the writ of inquiry. Would they commit the jury? Would the English people approve of such a step? Counsel were, as he understood, retained on the writ of inquiry. If they were retained, they would attend; and would the House again shrink from committing them? Was the House prepared to commit the counsel? If they took the under-sheriff, who sat as judge, they would find it impossible not to go on to the Court of Queen's Bench. If they did this, how were they to enforce their orders—would they call out the posse comitatus? In fact, any further steps would lead to serious results. But there was yet time for the noble Lord, on sufficient grounds, to retrace his steps, and to save all further inconvenience. If the noble Lord persisted, he would not be able to establish the power of the House to print and publish, because the courts of law had denied that power; but the House had vindicated its power, because it had shown that it had the power to commit. He had always admitted, that the House was the judge of its own privileges; it had that power, and yet it could only take into custody and commit. It had not the power to declare its own privileges, or any privilege against the rights of British subjects in any court of law.

Mr. Godson

said, the question was whether twenty-three days' imprisonment of a fellow creature was not sufficient punishment for the offence which had been committed. For his own part, he thought, that their privileges had been sufficiently vindicated. The great law authorities in that House, the Attorney-general, the Solicitor-general, the Lord-Advocate of Scotland, and the Solicitor-general for Ireland, together with the Leader of the Liberals and the Head of the Conservative Party—indeed, all the great men and good men of all parties had told them, that they had the privilege, and was not that sufficient? Would the further imprisonment of the sheriffs have any influence on the judges of the Court of Queen's Bench? It had been admitted, that they must have an Act of Parliament to change the law, and everything concurred in pointing out to the House, that they ought to fix the term of the imprisonment. The sheriffs had brought the combatants face to face in the Court of Queen's Bench, and having done so, the House had run away. The House, he conceived, was now doing great injustice, for it was punishing one man for the offences of another.

The House divided:—Ayes 76; Noes 149: Majority 73.

List of the AYES.
Archdall, M. Hope, G. W.
Attwood, M. Hotham, Lord
Bagge, W. Ingham, R.
Barrington, Viscount Irton, S.
Bentinck, Lord G. Jackson, Sergeant
Blackburne, I. Kemble, H.
Blackstone, W. S. Kirk, P.
Boldero, H. G. Knatchbull, right hon. Sir E.
Bramston, T. W.
Broadley, H. Knightley, Sir C.
Conolly, E. Knox, hon. T.
Cooper, E, J. Law, hon. C. E.
Cresswell, C. Lowther, J. H.
Darby, G. Lygon, hon. General
Dowdeswell, W. Mackenzie, T.
Duke, Sir J. Mahon, Viscount
Dunbar, G. Miles, W.
Duncombe, T. Neeld, J.
Duncombe, hon. A. Norreys, Lord
Duncombe, hon. W. Ossulston, Lord
Eaton, R. J. Packe, C. W.
Egerton, W. T. Pakington, J. S.
Eliot, Lord Palmer, R.
Fellowes, E. Perceval, Colonel
Filmer, Sir E. Perceval, hon. G. J.
Fitzroy, hon. H. Polhill, F.
Follett, Sir W. Praed, W. T.
Freshfield, J. W. Pusey, P.
Gladstone, W. E. Richards, R.
Greene, T. Round, J.
Grimsditch, T. Rushbrooke, Colonel
Halford, H. Shaw, right hoc, F.
Sheppard, T. Vere, Sir C. B.
Sibthorp, Colonel Verner, Colonel
Smyth, Sir G. H. Wood, Sir M.
Somerset, Lord G. Wood, Colonel T.
Stanley, E. Young, Sir W.
Sugden, rt. hon. Sir E. TELLERS.
Talfourd, Sergeant Kelly, F.
Thompson, Alderman Godson, R.
List of the NOES.
Abercromby, hn. G. R. Hayter, W. G.
Adam, Admiral Hobhouse, rt. hn. Sir J.
Aglionby, H. A. Hobhouse, T. B.
Aglionby, Major Hodges, T. L.
Alston, R. Hodgson, R.
Baines, E. Hope, hon. C.
Baling, rt. hon. F. T. Howard, P. H.
Barnard, E. G. Howard, Sir R.
Barry, G. S. Howick, Viscount
Beamish, F. B. Hutton, R.
Berkeley, hon. C. James, W.
Bewes, T. Lambton, H.
Blake, M. J. Langdale, hon. C.
Blake, W. J. Lemon, Sir C.
Blennerhasset, A. Lennox, Lord G.
Bodkin, J. J. Loch, J.
Brabazon, Sir W. Lushington, C.
Bridgeman, H. Lushington, rt. hn. S.
Briscoe, J. I. Lynch, A. H.
Brocklehurst, J. Macaulay, rt. hn. T.B.
Brodie, W. B. Macleod, R.
Brotherton, J. Marshall, W.
Browne, R. D. Martin, J.
Busfeild, W. Maule, hon. F.
Callaghan, D. Melgund, Visct.
Campbell, Sir J. Morris, D.
Clerk, Sir G. Muntz, G. F.
Clive, E. B. Murray, A.
Corbally, M. E. Muskett, G. A.
Courtenay, P. Noel, hon. C. G.
Craig, W. G. 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.
Du Pre, G. O'Connell, M.
Elliot, hon. J. E. O'Connor, Don
Ellis, J. O'Ferrall, R. M.
Ellis, W. Oswald, J.
Evans, W. Paget, Lord A.
Ewart, W. Palmerston, Viscount
Fitzalan, Lord Parker, J.
Fleetwood, Sir P. H. Parker, R. T.
Fort, J. Parnell, rt. hn. Sir H.
Gillon, W. D. Peel, rt. hon. Sir R.
Gordon, R. Pendarves, E. W. W.
Gore, O. J. R. Pigot, D. R.
Graham, rt. hn. Sir J. Pinney, W.
Greig, D. Pryme, G.
Grey, rt. hon. Sir C Ramsbottom, J.
Grey, rt. hon. Sir G. Redington, T. N.
Handley, H. Reid, Sir J. R.
Harcourt, G. G. Roche, W.
Hastie, A. Russell, Lord J.
Hawes, B. Rutherfurd, rt. hn. A.
Hawkins, J. H. Salwey, Colonel
Sandon, Viscount Vigors, N. A.
Scholefield, J. Villiers, hon. C. P.
Seymour, Lord Wakley, T.
Sheil, rt. hon. R. L. Wallace, R.
Smith, B. Warburton, H.
Somers, J. P. Westenra, hon. J. C.
Somerville, Sir W.M. White, A.
Stansfield, W. R. C. Wilde, Sergeant
Staunton, Sir G. T. Williams, W.
Stewart, J. Williams, W. A.
Stuart, Lord J. Winnington, H. J.
Strickland, Sir G. Wood, B.
Strutt, E. Wood, C.
Tancred, H. W. Wyse, T.
Teignmouth, Lord Yates, J. A.
Thornley, T.
Tollemache, F. J. TELLERS.
Troubridge, Sir E. T. Stanley, E. J.
Tufnell, H. Seuart, R.
Sir E. B. Sugden

then moved a resolution, that the order directing the sheriffs to pay over 640l. levied by them, to Messrs. Hansard, be rescinded.

Motion negatived.