The Order of the Day for taking the Petition of Messrs. Hansard into further consideration having' been read, the following petition from John Joseph Stock-dale was presented.
The Petition of John Joseph Stockdale.
That your Petitioner is a prisoner in the custody of your Serjeant at Arms, by your order, made, as your Petitioner believes, under an erroneous impression, induced by answers elicited from your Petitioner to questions calculated to criminate your Petitioner, without a subsequent opportunity (afforded to others) of remarks in vindication or explanation of said Petitioner's conduct.
Your Petitioner, therefore, humble implores your honourable House to allow your Petitioner further examination and statement by which it must appear to the satisfaction of
your honourable House, that your Petitioner never contemplated, nor has been guilty of, any breach of the Privileges of your House.
And your Petitioner, as in duty bound, will ever pray, &c.
JOHN JOSEPH STOCKDALE.
Prison Cell, Home of Commons,
18th January, 1840.
§ Petition to be printed.
§ Lord John Russell
rose and said, it now became his duty to state to the House the precise course which he considered, in conjunction with his hon. and learned Friend, the Attorney-general, and with other members of this House, should be taken in the present stage of these proceedings. In doing this, it appeared to him necessary to recal the attention of the House for some moments to what their former proceedings had been, and to the precise position in which the question now stood. They had a resolution on the journals of the House to the effect,That the power of publishing such of its reports, votes, and proceedings, as it should deem necessary or conducive to the public interests, was an essential incident to the constitutional functions of Parliament, more especially of this House, as the representative portion of it.The act which had been called in question was an act done by Messrs. Hansard strictly in accordance with that resolution. In the year 1835, a bill was proposed in the other house of Parliament by the Duke of Richmond, for the purpose of appointing inspectors of prisons. That act came down to this House, when it was proposed to exempt from its provisions the prison of Newgate. That proposition was not acceded to, and accordingly the prison of Newgate came under that act, there being no sufficient grounds for its exemption. Now, it would have been quite possible that the inspectors of prisons, on inspecting Newgate, should have made a report, that so excellent was the system adopted in that prison—so good was the plan of the construction of its cells—so free was every prisoner by their system of classification from contamination, and that such was the strictness with which all rules for preventing the introduction of spirits or improper food, or immoral books, or newspapers, were carried into effect, that the inspectors had no fault to find with regard to that prison. It would then have been competent, he imagined, in any future bill for the amendment of prison discipline, to have relied 253 upon the argument thus afforded, and to have stated that the report of the inspectors furnished ample ground why the prison of Newgate should be exempted from the jurisdiction of the inspectors of prisons. He stated this in order to show how far the report of the inspectors of prisons was connected with the proceedings of Parliament. But it did so happen that the report of the inspectors with regard to the prison of Newgate was not so favourable as he had described. Nay, the report was unfavourable with regard to the construction of the cells, the association of the prisoners, and also with regard to the introduction of newspapers and books. A copy of the report of the inspectors was laid before a committee of the House, which was afterwards contained in the report of that committee. The House ordered the report to be printed. In consequence of the printing of that report, and of publishing it, an action was brought by Mr. Stockdale, of which it was nut necessary to relate the history to that House. It was competent to the House to take any proceedings they pleased. They might have altogether abandoned their resolution; they might have permitted the case to go on in due course of law; or they might have determined to vindicate their powers upon the consideration that all necessary functions for legislation must be allowed to the House of Commons; and, conceiving the publication of its reports to be one of its necessary functions, they might have proceeded to vindicate their privileges. After the directions given by the House to the Attorney-general to appear to the first action, and after the direction given to Messrs. Hansard not to take any notice of the letter informing them of the intention of Stockdale to bring a third action against them, the question at length came before the House at the beginning of the present session, and the House determined to consider it as a question of privilege. They had not only done that, but they had proceeded to another step, and had determined to punish one of the parties concerned in bringing these actions, namely, the plaintiff himself. They had voted that his proceeding in those actions was a breach of the privileges of the House, and he had been committed to the custody of the sergean-at-arms, according to the manner in which the House was accustomed to visit such a breach of 254 its privileges. The question now was, the House having determined that these were constitutional functions, necessary to this House; and having determined that this was a question which they would consider as a question of privilege, and not having determined to have recourse to any of the other modes of proceeding recommended by various members of the House—the question now was, whether they should proceed further with regard to other parties concerned in this transaction. He would now state what he conceived to be material to be considered, that the House of Commons was placed, in respect of cases of this description, in a situation of disadvantage, as compared with other courts, which had likewise to vindicate their own proceedings, to maintain their own privileges, and to exercise the functions which were allotted to them by the law and the constitution. With regard to the courts of law, for instance, it generally happened at a very early stage of the proceedings, where any court felt itself aggrieved or had their proceedings obstructed by other courts questioning their proceedings. They had heard from one of the parties examined at their bar, that very intelligent person, Mr. France, who held the office of under-sheriff, that with regard to the Court of Chancery, he never had experienced any difficulty, because it was well known, that the Court of Chancery would not permit that a case which was before it, and where the parties were within its jurisdiction, should be brought into a court of law. The court would immediately issue an injunction, which it was sufficiently well known would prevent the case going further, and the plaintiff would be immediately stopped by that proceeding. With regard to the Court of Exchequer, there were numerous cases in which that court, conceiving certain subjects to belong to its peculiar jurisdiction, had interfered, and had prevented actions being brought, and had issued directions, that such actions should not be brought, and had protected their own officers when persons had attempted to bring against them actions for false imprisonment, or of any other description in the execution of their duty. With regard to the House of Lords likewise, the general rule had been (there were, he admitted, one or two exceptions, but the general rule had been) to stop the plaintiff at once from proceeding. There 255 was one case in which both the plaintiff and the attorney were at once committed to prison by the House of Lords, in consequence of their bringing an action of false imprisonment against a justice of the peace, who had obtained an order of the House of Lords. But with respect to this House having, he contended, the same right, exercising its functions—those functions being part of the high court of Parliament—declaring, as it must declare, that certain functions belonged to that House—yet it might happen, and did happen, that during the prorogation of Parliament an action might proceed, judgment might be given, and not only the original parties, not only the plaintiff and the attorney, but the sheriffs and other persons appointed to execute the law, might be implicated without the House having the power to decide what conduct it would pursue on the occasion. The question which the House had had to consider, and it was certainly a very serious question, though it was one upon which he could only come to one conclusion—was whether they should proceed with regard to the sheriffs to interfere and prevent them from paying over to the plaintiff in this case the money which they had received for the goods sold by them belonging to Messrs. Hansard, the officers of that House, or whether they should adopt any other form of proceeding. It appeared to him, in considering this case, they must throw out of view altogether the peculiar degree and amount of blame, or moral culpability with regard to the sheriffs. The question was, in what manner their privileges were to be preserved, if they did not proceed against the sheriffs? Who were the next great culprits? The judges. Now, he did not mean to impute either to the sheriffs or the judges, or indeed to any of those parties who acted in the courts of law, that they had wilfully, and with an intention to do what was wrong, engaged in contravening the privileges of the House of Commons. He did not mean to impute moral blame to them in having acted contrary to their duty. But what they had to consider was, in what manner their privileges were to be maintained; what they had to consider was, whether by any possibility they could allow the goods of a servant of their House to be seized because he had acted in execution of their order, and had printed their report, which was essential for their legislation; whether 256 they could permit these goods to be taken from themselves through their servant and be handed over to the plaintiff in the action against whom they had passed a resolution, and had committed him to prison. If they desired to maintain their privileges they could but come to the opinion at which he had arrived, that they could not allow these things to be done. Much might be said on the question, if they were to entertain it, how far the sheriffs had been to blame, or what restitution, or what amendment they could make. It was, no doubt, a part of their duty to be aware of the privileges of the House, and to observe them. Not only so, but in this case they had received especial notice of those privileges, and, notwithstanding that notice, they had proceeded to seize the goods and to make a sale of those goods. When the House considered, however, that for many years the question had not been raised, when it had been thought, from the uninterrupted practice of Parliament ever since the Revolution, and from the recorded judgment of Lord Kenyon, that there was little doubt upon the subject, and when they now found the judgment of a court of law impeaching that practice, they could but admit, that the sheriffs had an embarrassing duty to perform. If the question to be determined was the apportionment of the punishment to the proportion of guilt, he should be at a loss to know what to determine; but he considered, that they had now no such question to decide. The question for the House to decide was, how they were to maintain their privileges. If those privileges were to be maintained, he thought, they had now but one course to pursue. They must not allow the transaction to advance any further, and must inform the sheriffs, not only with respect to what they had done, but with respect to the sum which they had levied from an officer of the House, that they must refund it to the servant of the House. For his own part, he could see no other way in which they could proceed with a due regard to their privileges. They might indeed say, that they did not wish to maintain their privilege of giving orders to their officer to print what they pleased, but would they not be degraded, if, after they had authorised their Speaker to sign an order, and after their Speaker had, in pursuance of such authority, signed an order on their printer to print and publish their proceedings, when that 257 person should come before them and complain of molestation, they should say—"We are not willing to maintain our order; we are not able to give you redress, because the House of Commons is unable to vindicate its own proceedings." He thought, that if they, upon consideration, found that they had no such power, they had better rescind all their orders; they had better withdraw their order for publication; they ought to confine themselves to the strict limit that the judges of the Queen's Bench had laid down for them, and print their papers only for the use of the 658 Members composing that House, and not to permit Messrs. Hansard to incur any punishment, by acting in accordance with the orders of the House. It had been admitted in that House, that it was for the public advantage—it had been admitted, that it was for the advantage of the kingdom at large, that their proceedings should be known. For his own part, he could not conceive, that it would be right to refuse the public the information that was necessary to inform the public on what the proceedings of that House were founded. It might be necessary, with regard to this very question to refer to the public concerning the prison of Newgate. Many persons might be of opinion, as he was at one time strongly of opinion, that they ought to compel the city of London to build a new prison; and if it were so, would it not be difficult to carry their bill—when the city of London should ask for the reason of their proposal, and they should be unable by law to afford to the city the information on which they proceeded—so also with regard to every other great matter that might occur. Take Canada, for instance. How could they be justified in suspending the constitution of that colony, if they refused to the public at large all the information on which that suspension was founded? So with regard to many internal proceedings of this country. Information might be laid upon the Table of that House which might be the groundwork of proceedings of severity which the House might take in its legislative capacity. It would be impossible to deny giving to the public such information. From the year 1796 to the year 1800, when proceedings which were thought to be dangerous to the Crown were carried forward, committees of secrecy were appointed, and the reports of 258 those committees were ordered to be printed. Very important proceedings were grounded upon the state of the country as shown by those publications. He would not now stop to inquire whether those proceedings were right or wrong; but it was the opinion of the Parliament of that day, that proceedings should be taken; and they followed that up by giving to the country the information on which those proceedings were founded. It was due to the country that it should have complete satisfaction that it was not on light grounds the Parliament had proceeded seriously to abridge the constitutional liberties of the people. With regard to one proceeding, a question had been raised, not with the printer of that House, but with a printer who had published, not unfairly or illegally, but voluntarily, the proceedings of a secret committee of the House; and he (Lord J. Russell) would read to the House what upon that occasion Lord Kenyon stated to be his opinion of the proceedings, and which could not be considered as a libel. One of the parties, who found that an imputation was cast upon his conduct as a loyal subject, applied for a criminal information against the publisher. Upon that occasion, Lord Kenyon said,This is an application for leave to file a criminal information against the defendant for publishing a libel: so that the application supposes that this publication is a libel. This report was first made by a committee of the House of Commons; then approved by the House at large, and then communicated to the other House, and is now sub judice; and yet it is said that this is a libel on the prosecutor. It is impossible for us to admit that the proceedings of either House of Parliament is a libel.He said afterwards,This is a proceeding by one branch of the Legislature, and, therefore, we cannot inquire into it.Mr. Justice Grose and Mr. Justice Lawrence concurred in that opinion for other reasons with which he need not trouble the House. Thus the publication of their proceedings by another printer, and not by the printer of the House, was justified, and up to the late proceeding of the Court of Queen's Bench was the acknowledged law of this country. There had been up to the recent decision, no reason to doubt that such was the declared law, as law it had been adhered to, and it 259 had not been contradicted up to the late proceeding by any other decision. They had now, however, got a different judgment, and he did not deny that this different judgment placed the House in a situation of considerable difficulty. He did not wish to conceal from the House that their position with regard to a question of this nature was different from what it was in former days In tally days, the privileges, such as the privileges of freedom from the personal arrest of the Member, and the freedom of Speech in that House, were matters of contest with the Crown and the courts of law. In those days they proceeded, as he now proposed to proceed when a sheriff told them, as a sheriff did tell them, that one of their Members were in prison, and that the sheriff would be fined 5,000l. if he let him out, the House ordered the sheriff to let him out. In that proceeding, he admitted that they had with them the popular feeling, founded on the universal feeling that the House of Commons, in attacking the fours of law, were proceeding against the nominees of the Crown; that they were proceeding against judges who were sitting on the judicial bench one day, and who, if they gave a single decision in favour of the liberty of the subject, or if they did not act with sufficient harshness against any one who had in any manner offended the Crown, would not be judges the next day, and who consequently had Hot tie same weight as modern judges. It had been the aim of the House of Commons, from the period of the Revolution—the unceasing aim of the House of Commons—to make the judges of the courts of law independent of the influence of the Crown, as well as of the popular voice. But when they had invested them with this character, and had, at the same time, procured the security of independence, they had added greatly to their weight in any contest, if contest there must be, which the House might be obliged to carry on against them. It was the nature of all bodies of men, it might be of that House or of the judges, that, having secured their own independence, they endeavoured to trench upon the privileges of others, though they were those of their benefactors; and so the judges had endeavoured to infringe the privileges of the House of Common? He felt all the difficulties of carrying on such a contest: no doubt inconveniences might arise 260 from the course which he proposed; but considering the position in which they were placed—considering what were the evils of that position, and considering that the power of independence and of sanctity which they had given to the courts of law might be used against themselves, he felt that, if they declined this contest, they would not only be giving up this privilege, but they would be submitting to the decision of future judges, the amount and the extent of any privilege and of any power which the House of Commons might possess. As a House of Commons, being I of itself one of the Members of the High Court of Parliament—being the grand inquest of the nation to which the constitution had given the power of impeaching or of prosecuting, where necessary, all offenders—being the body to grant supplies when they were needed for the well government of the country—and having to pass all those measures of legislation which the state of the country or the improvement of the law should from time to time require—feeling that the House of Commons had all these functions to perform, feeling that it had this high duty to discharge, he felt also that they would neglect, betray, and desert that duty, if they now receded; that the House of Commons would be precluded from the exercise of its functions, would cease to maintain its proper place in the Legislature, would cease to hold its place as a constituent part of this noble constitution, and that its power would be weakened and neutralised, and finally destroyed, if a court of justice could pronounce what privileges were necessary, or if any of its privileges were amenable to the decision of any court of justice. He would conclude by moving, that it appeared to the House that an execution in the cause of Stockdale v. Hansard had been levied, to the amount of 640l., by the sale of the property of Messrs. Hansard, in contempt of the privileges of that House, and that such money then remained in the hands of the Sheriff of Middlesex; and if that resolution should be carried, he would move further, that the said sheriff be ordered to refund the said amount forthwith to Messrs Hansard.
§ Mr. Fitz Roy Kelly
rose for the purpose of proposing certain resolutions by way of amendment to the motion of the noble Lord. He did not condemn the noble Lord for the delay which had taken place 261 in discharging the sheriffs after their late examination, for it was impossible that a question of this nature could be conducted with too much deliberation and caution. He was sure the noble Lord would feel, that from whatever cause it might have arisen, the House was placed by the present proceedings in a situation of greatly complicated and unexampled difficulty. He, for one, should feel most happy if any course could be pointed out by which, without departing from the dignity of the House, the law and the constitution might still be upheld in their integrity. It was his intention to submit to the House two propositions—first,That it appearing to this House that an action has been brought against James Hansard and others, for the publication by them, under an order of this House of certain papers containing libellous matter upon John Joseph Stockdale, and that judgment has been obtained and execution issued by due course of law against the said James Hansard and others in such action, it is expedient that the said James Hansard and others be indemnified against all costs and damages by them sustained in respect of such action.To this resolution he did not expect that any objection would be made but to the other which he intended to propose.That in case of any actions being hereafter brought for the publication of any papers under the order of this House, the Attorney General be instructed to defend such action, and to report thereupon to the House.He was quite aware, that he might look for some opposition from those hon. Members who took a different view of this subject. He should be happy if he could confine his observations to urging these propositions on the House; but he felt it his duty, after the very open and candid statement by which the noble Lord had prefaced his resolutions, to declare, that more unwise, unjust, illegal, and unconstitutional resolutions; orders more impossible to be obeyed without the total and direct violation of all moral and legal obligations by those on whom they were to be laid, it would be impossible to bring forward—nay, he would say, never had been brought forward, in any legislative assembly, even in the very worst of times. Before he came to the assumption of privilege, on which these questions had arisen, he must be allowed to ask in what way the noble Lord proposed to enforce obedience to his resolutions? Here was a case involving the 262 sheriffs, who were the sworn officers of the law, servants of her Majesty, bound to yield obedience to her Majesty's writs delivered to them by the courts of law. They were now called to the Bar in consequence of having received writs to levy certain monies in a cause regularly instituted, which had passed with all the forms of law through a court in Westminster-hall. They were commanded to yield obedience to those writs by the court; they violated their oaths if they failed to yield obedience; they rendered themselves liable immediately, without redress, appeal, or defence, to be committed to prison if they failed to yield that obedience. And now that House, not the entire Legislature, but one branch of it, having no power to make the law, or to absolve the subject from obedience to the law, proposed by its single, separate, unsupported resolution, to command the sheriffs to violate the law, to place themselves in a situation, not merely of peril, but where this fate certainly awaited them—that without redress or appeal their persons must be imprisoned, and that, too, where the House had no other ground to proceed upon than its own resolution. He thought he should be able to show that the law of Parliament, which was but a part of the law of the land, could not possess authority to set the municipal law aside. This was the general nature of the noble Lord's resolutions, but the House could not be asked to adopt them, unless the noble Lord, and those who acted with him, could convince the House that their former resolutions, founded on the report of the committee of 1837, could be maintained consistently not only with the orders of the House, but with the law and constitution of the country. He would therefore at once call the attention of the House to the first of the three resolutions of the year 1837, on which the course now recommended to the adoption of the House was entirely founded. That resolution was to the following effect:—That the power of publishing such of its votes, papers, and proceedings, as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially to the Commons House of Parliament as the representative portion of it.And further,—That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the in- 263 stitution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.Now if that House, instead of claiming this power as a matter of privilege and right, had resolved that it was for the public benefit and interest that the proceedings of the House, and that such papers in the nature of proceedings as to the House should seem meet, should be laid before the public for their instruction and information, he for one would have cordially assented to that resolution. He admitted the advantage of the publication of the papers, not only for the use of the Members of the House, but the public; it would tend to create a respect for their proceedings, if the grounds of those proceedings, and the information on which they were founded, were fully and freely communicated to the public; and he said at once to those who took the same view of his resolutions as he did, that if he conceived that what he proposed should interfere with the publication of information by the House, he would really feel that he was inflicting a great evil and injury on the public. While, then, he admitted, that the great benefit ought to be given to the public by this mode of communicating information, still he differed from the framers of the resolutions he had read, as to its being a matter of privilege for the House to publish all its papers, upon all matters and upon any occasion whatever. He conceived that it did not require any privilege to give validity to the publication of their proceedings. The House of Lords possessed the right to publish their papers to the world. It would be putting a limit to the right by clothing it with the nature of a privilege, as if it were not possessed in common by all other bodies, and by every individual in the country. It was their right to publish any paper, provided they limited themselves by the rules of law. It could take place under any circumstances, if they did not insert any thing that might be the cause of a complaint, at law for any injury on any one of her Majesty's subjects? As soon as this resolution passed, would it become competent for the House to give authority to say individual to publish any unlawful 264 libel on any one of her Majesty's subjects? He denied the right of the House to enable any individual to publish that which, being defamatory of another of the Queen s subjects, might be the subject of a proceeding in a court of law. He would not enter into the question whether the circumstances of the publication in which these proceedings originated would or would not give a just right of publication. That was a distinct question. The question really was, whether the House had the power to declare and to make a law that the publication of what was unlawful before the resolution, should become lawful by that resolution. The question, then, to be determined was, whether one branch of the legislature, without the consent of either or both the other branches, had the power of making what before would subject the party to an indictment or action at law, no longer the ground of action or indictment; whether there was a power in either House to usurp the functions of the legislature, and to make laws of its own single authority. Amidst the many authorities which had been referred to in the course of these proceedings, there were very few that bore upon the question whether the House had the power to declare that what was otherwise unlawful became lawful by the single order of either House. He was not aware of any case, except the single case referred to by the learned Gentleman in the course of his argument—the publication of Dangerfield's narrative. There were many authorities bearing on the distinct question, whether the courts of law could entertain a question relating to the privileges of the House; but the power of the House to justify the publication of all its papers as lawful, had never been directly claimed till the resolutions of 1837, and had never been indirectly claimed, or even glanced at, except in the single case to which he had referred. It had been admitted by the Attorney-general in that House, and it had been admitted by him in the course of his argument in the Court of Queen's Bench, that the House could not make to itself, and could not create in its own favour, any new privilege. If, therefore, he should succeed in convincing the House that the assumed power of publishing its proceedings was a new power, one which, without restriction, had never been exercised till lately, and one which in express terms had never been claimed, then his hon. and learned Friend and 265 those who thought with him would see that this was a new claim, and could not be recognised even by Parliament itself. The industry, and it had been great, of those who had referred to the precedents in this case, was not able to discover a single resolution of that or of the other House of Parliament—no resolution in direct terms or in indirect terms—that the Members of either House possessed the unlimited and unrestricted power of publishing its own proceedings. The power rested entirely on its exercise, from what was called parliamentary usage or custom. When he came to consider the precedents in this case, he owned that it struck him that a singular time had been selected for the first exercise of this supposed privilege. He found by the report of the committee of 1837 that the first occasion on which an order of the House was made for the publication of its proceedings was in the lime of the Long Parliament, and in the year 1641—a very suspicious time for establishing' a novel power in the House of Commons. He was now addressing those who knew that it was in the same year in which this privilege was established, and that it was the same Parliament that, forgetting its own assumed privileges, assumed also to control the privileges of the other House of Parliament, and passed a resolution that the bishops had no right to vote in the House of Lords—who knew that it was in the same year and the same Parliament that brought the Earl of Strafford to execution—that it was in the same year, and the same Parliament that declared its own sittings permanent, and proceeded to force the assent of the Crown to an Act destroying one branch of the prerogative; the power of dissolving Parliament; he could not but recollect that all this occurred in the same year and in the same Parliament that the order for publication was given. He did not deny that from that year the publishing of certain of the votes and proceedings of the House had continued down to the present time; but the question here was not whether the practice had prevailed, or had been considered lawful; but whether that circumstance established the right in that House to legalise under the name, and under the countenance of that practice, the publication of matters defamatory of any of her Majesty's subjects. The only argument which he had heard advanced in the course of this discussion at all bearing on this 266 part of the question, was this: "Why, you find that for upwards of a century the proceedings and papers of this House have been regularly published, and during that time they have contained many defamatory matters severely reflecting on her Majesty's subjects; but yet we do not find, until this case, a single instance of an action being brought treating one of them as a defamatory libel." He did not deny that that argument deserved consideration; but when they reflected upon the difficulty which an individual would have in opposing the House of Commons, devoid, perhaps, of resources, and called upon to contend against that body, which had the control of the public purse, and possessed therefore of boundless power, he did not think that it was extraordinary that no person should have been found bold enough to undertake so fearful a contest. It might besides be remarked, however, that it was very possible that a great number of the libels previously published might have been true, and that on that account also persons might have failed in taking any proceedings upon them. But after all, if the acquiescence had been even larger than it was—taking it in its fullest extent, that the practice had existed for a century or near it, and that the papers had teemed with actionable libels—still the argument possessed very little weight. Supposing that a century ago, when first the debates in Parliament were published in newspapers, that House had been pleased to name certain newspapers to publish those debates, under its own authority, and supposing that these newspapers had continued in the exercise of the privilege thereby conferred down to the present time, and, further, that an action was now brought, for the first lime, for some libel contained in these reports sent forth to the world, could there be any doubt that every proprietor or publisher of those newspapers would be liable to an action for every defamatory statement which should appear in their columns, although previously uttered in the course of the debates in that House, and reported as having fallen from the mouth of some Member of Parliament? There could be no hesitation in supposing that such would be the fact; and yet, although no such authority had been given by the House, no instance of an action being brought had occurred for such a libel, although speeches certainly containing defamatory matter had been published 267 in almost every newspaper throughout the country. The argument, therefore, which was drawn from acquiescence, was very weak indeed. There was but one case in which the question directly arose whether the courts of' law could take cognizance of proceedings on a libel published by the order of that House, and that was commonly called Sir William Williams's case, in which Sir William Williams, the Speaker of that House, was prosecuted for the publication of a letter called "Dangerfield's Narrative." The House of Commons, some years after that had been published, did question the right of the courts of law to administer justice in such an action. The circumstances of the case were, that there had been a paper published highly defamatory of the Duke of York, afterwards James. 2nd., which was written by Mr. Dangerfield, and printed, published, and circulated, under the order of Sir William Williams, acting under the resolution of that House. An information, if not an indictment, was prosecuted against Sir William Williams, and he defended himself upon the ground that he had acted under the directions of the House; but that was over-ruled, and he was fined 10,000l. He entirely agreed that this decision was altogether unlawful, and that every act done by the Speaker of the House, under the orders of the House, was lawful, and that the Speaker could not be punished. No information or indictment against the Speaker of that House, for any act by him done under the orders of the House, could be maintained. [Sir Robert Peel: By what law?] Under the law of England, which respected, and had always respected, and he hoped ever would respect, the privileges of that House. [Cheers.] Those cheers rather anticipated an observation which he was about to make, but which he would now throw out. He held that the privileges of that House were part and parcel of the law of Parliament, and that the law of Parliament was part and parcel of the law of the land. It was a confusion of terms, and was erroneous to suppose that the law of Parliament was superior to the common law of England. The law of Parliament the law administered in the Courts of Equity, and in the Ecclesiastical and Admiralty Courts, as well as the common law and the statute law, were all comprised in the great body of law called the jaw of England, which the judges of the 268 land were bound to administer. He made no distinction between them; and when he was asked why he believed that no proceeding at law could be taken against the Speaker, or rather why he said that there was a good defence to any such proceeding in the fact that the act complained of was done by the orders of that House, he answered that it was because no Member of that House was punishable by any law for any act done within the walls of Parliament. The Speaker of the House being a Member, and all other Members if they misdemeaned themselves, were liable to the House itself; but it was one thing to say that they were privileged and protected in what they did in the House, and what the Speaker might do by direction of the House; and another to say that any man, with the Speaker's authority, might commit any crime, from the consequences of which he should be relieved when challenged in a court of law. He was observing, when he was interrupted by the right hon. Gentleman that in Dangerfield's case, he admitted that the decision which was arrived at was the proper one; but let them see whether the courts of justice were to be deprived of their jurisdiction in cases where, not the Speaker, nor any Member of the House of Commons was challenged for what he had done, but where another person, not a Member of the House, pleaded the order of the House of Commons. Why, Dangerfield himself was prosecuted in respect of the publication of the very libel in the case to which he had been referring, and the decision was reported in the 3rd volume of Modern Reports, and he was not aware that the judgment against him was ever reversed or impeached in Parliament, or elsewhere. With regard to the privilege itself, it could only rest on the long existing practice, and on unvarying and unimpeached precedent, untouched by circumstances, which would admit the supposition of the continued acquiescence being derivable from fear or any cause, to which all good subjects would not yield; but he would say that there was nothing in the practice, or the recorded resolutions of that House, which would in any way sanction its continuance. He would now pass on to that which was by far the more important question, and which arose upon the second of these resolutions—a question which he said humbly but sincerely, it would become the 269 House deeply and seriously to consider before it proceeded to act upon the resolutions now proposed by the noble Lord; because he ventured to say that this second resolution and the third—for they both rested upon the same ground to which he was next to call the attention of the House—could not be maintained in this free country, unless they would at once annihilate the rights and powers of all the courts of justice. What was that resolution?—That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure and to the punishment consequent thereon.Now, here were two distinct propositions; the first was, "that the House had the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges." What was meant by the word "exclusive?" Was it meant, that in no case and under no circumstances could a court of law enter upon the determination of the existence of one of the privileges of that House? Was that the meaning? He took it for granted that it, was; because he knew what was the exposition of these resolutions given by his hon. and learned Friend the Attorney-general, in his very able and elaborate argument in the case of "Stockdale v. Hansard." Perhaps he ought not to quote arguments advanced by him when acting in his professional capacity as counsel in the case, nor would he, had he not understood his lion, and learned Friend to affirm those very arguments and abide by them in that House. The language of the Attorney-general was—The lex Parliamenti which is to be administered by the two Houses of Parliament is not known to the judges of the common law, and they have no means of judicially arriving at any knowledge upon the subject.The inevitable result of the resolutions of the House, as expounded by the Attorney-general, must be, that no court of justice at any time or under any circumstances could presume to enter upon the question whether any given privilege which the House might claim did or did not 270 exist. That doctrine seemed to him to be a dangerous one; nay, that was but a feeble expression—it was a doctrine directly subversive of the jurisdiction of all the courts of law throughout the realm. It was, therefore, an alarming doctrine, and it was absolutely necessary to place in opposition to it the highest and best authority that could be found. He could not meet it better than by referring the House to the language of Lord Chief Justice Denman, who in few but very emphatic words completely disposed of that doctrine.If the Attorney-general was right in contending," said Lord Denman, "as he did more than once in express terms, that the House of Commons, by claiming anything as its privileges, thereby makes it a matter of privilege; and also that its own decision upon its own claim is binding and conclusive; then plainly this court cannot proceed in any inquiry into the matter, and has nothing else to do but declare the claim well founded, because it had been made.He (Mr. Kelly) would here take leave to say that he wished the example set by Lord Denman, one of the most able and distinguished judges that ever sat upon the bench, when speaking of that House, had been followed in the course of the discussions which had taken place upon this subject in that House. Let the House look at the manner in which Lord Denman spoke of it, sincerely without doubt:—This is the form in which I understand the Committee of a late House of Commons to have asserted the privileges of both Houses of Parliament, and we are informed that a large majority of that House adopted the assertion. It is not without the utmost respect and deference that I proceed to examine what has been promulgated by such high authority. Most willingly would I decline to enter upon an inquiry which may lead to my differing from that great and powerful assembly; but when one of my fellow-subjects presents himself before me in this court, demanding justice for an injury, it is not at my option to grant or withhold redress." "I am bound to afford it, if the law declares him entitled to it. I must, then, ascertain how the law stands, and whatever defence may be made for the wrong-doer I must examine its validity. The learned counsel for the defendant contends for his legal right to be protected against all consequences of acting under an order issued by the House of Commons, in conformity with what that House asserts to be its privilege; nor can I avoid then the question, whether the defendant possesses that legal right or not.271 Now he must say, that in all the discussion which this subject had undergone, it had never yet been his good fortune to hear even the semblance of an answer to that part of Lord Denman's charge. The House would remember that the judges were eminent and learned persons, appointed by the Sovereign, and selected from the highest ranks of the profession; they were sworn to administer the law according to the best of their judgment upon the cases coming before them in their respective courts. They were bound by oath to give a decision upon the questions before them. Well, then, suppose, as in Stockdale's second case, it was pleaded, and the court decided that the question on record was whether that House was possessed of the privilege of authorising the publication of defamatory libels on any of her Majesty's subjects—when that precise question was raised, what were the judges to do? Were they to abdicate their functions and depart the court? Were they to say, the name of the House of Commons or the House of Lords had been heard before them; that it had been uttered by the counsel in the case, and the moment it was so uttered they had nothing more to do with it; that they knew nothing of the House of Lords or of the House of Commons, or of their privileges, and must forbear to enter upon the case at all? Were the judges to act in that manner? He apprehended it was beyond all denial or doubt, that in whatever form the question might be raised, whether that House possessed a certain privilege, or the Queen a certain prerogative, the judges must entertain the question and decide upon it, for they were sworn to do so. But what was the resolution of the House? They said that the courts were to slop short; that they could not entertain the question, and could possess no means of judicial knowledge upon the subject. The answer to that was, that the law of England, into however many branches it might be divided, comprised with in it the law of Parliament, and the question of privilege was part and parcel of that law, and that, as well as all other law, must be decided by the judges whenever the question came before them. He admitted that it might be inconvenient for judges to decide questions not so frequently before them as questions of common law. It might be inconvenient for them to decide questions of equity, which must of necessity som- 272 times arise; but they must do so—he had no alternative. But was he to be told now, in the year 1840, that it was a novel assumption that courts of law were forced to decide on this question of privilege when it came before them? He begged the House to observe, that in every one of the cases referred to on both sides of the House, from the earliest down to the present time, in which the privileges of Parliament came under the consideration of any of the courts of Westminster-hall, although they gene-ally upheld and protected the privileges of the House, they had invariably decided on the cases brought before them. What, then, was the meaning of the third resolution of the House,—"That for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament thereon, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament." How could the court forbear to decide? In one or more of the cases relied on by the other side—in that of "Jay v. Topham," and the case of Brass Crosby—which had been referred to in order to show that when this House had committed one of its own members for that which was pronounced a breach of privilege, and where the party had brought himself by habeas before the Court of Common Pleas, in order that he might be discharged, the court refused to discharge him. But did that court on that occasion conform to the present resolutions of the House? Did it refuse to assume to decide upon the privileges of Parliament? On the contrary, the very question was raised; the direct question upon which the decision proceeded was this—" Has the House of Commons a right to commit one of its members for that which it declares to be a breach of its privileges by him committed?" The court proceeded to consider that question; they heard it argued; they debated it; and, so far from not assuming to proceed to a decision, they did decide that the House of Commons had the privilege, and accordingly the court could not interfere, and the prisoner was remanded to the Tower, from which he had been brought. In these, as well as in all other cases, the courts did decide, because they were bound to decide, every question which was brought before them. It would appear that some hon. Members had come to the conclusion, that because the privileges of the House 273 had always been upheld and defended by the courts, they had therefore denied their jurisdiction. But that was not the fact. The various privileges claimed by that House could not have existed, and he ventured to add, they could not hereafter exist, even for a single session of Parliament, unless they were upheld and protected by the courts of law. How could a Member of that House, whether arrested on civil process or imprisoned on a graver charge, go before the Court of Queen's Bench by habeas corpus, and plead his privilege successfully, if, according to the resolution of the House, the courts of law were not to entertain a question of privilege? But so far from the courts having an opinion that they had no light to enter upon the question of the privileges of that House, they had released Members of that House from custody; and he had no doubt, that as long as the laws continued to be upheld, the judges would continue to administer the law of Parliament as part of the law they were bound by their oaths to administer. What was the course pursued in reference to the case of "Burdett v. Abbott," that case which was relied upon by the other side as one of high authority? Did the House proceed as the House was now proceeding? Did the House then say, "We will not defend this action; it is a high contempt and breach of the privileges of the House, and we will punish those who brought the action and those who assisted in carrying on the action, and even the judges themselves who may proceed to decide the question, but we will not interfere in any other way?" On the contrary, the House ordered the Attorney-general to attend in the Court of Queen's Bench, and plead in defence the privileges of the House; he did so; the case was argued before the whole court, and the court affirmed the privileges of the House, and gave judgment in favour of the defendant. But did the Court of Queen's Bench in that case, which was justly looked to as one of high authority, repudiate the idea of entertaining the question of privilege? Did the court say, "These are matters too high for us to entertain?" Did they at once admit that they must not assume to decide upon a question of privilege? On the contrary, in one of the most luminous judgments ever delivered from the bench, Lord Ellenborough said, that the very first question was one as to the privileges of the House. The only points, he 274 said, which were immediately presented on the record for their decision were, first, whether the House of Commons had any authority by law to commit in cases of contempt and breaches of privilege; and, secondly, whether, supposing it to have such authority in general, that authority had been well executed by the warrant in question? Was that opinion in anyway consistent with the resolution which declared the House itself to have "sole and exclusive jurisdiction to determine upon the existence and extent of its privileges?" Was he to be told, then, that it would be a breach of privilege for a court of law to proceed to decide contrary to the resolutions of that House? Or were the judges to be told, that if they decided in favour of the House, it would be no breach of privilege; but if they decided against it, they would be guilty of a breach of its privileges, for that, he said, without the fear of contradiction, was the only intelligible meaning which could be put upon their resolutions? It could not but be wondered at, that such resolutions should have emanated from a committee consisting, as it did, of some of the most learned and able Members of that House. But he hoped the House would consider what was likely to be the effect of those resolutions, what would be the position of the judges of the land when the question of privilege came before them, and whether the House did or did not possess the right which it claimed of publishing papers without restriction or qualification, and of authorising others to publish without fear of legal consequences? Let them rescind those resolutions, which would make the judges of every court in Westminster-hall guilty of a breach of the privileges of that House, if they performed the duties which they had sworn, and were solemnly bound by oath, to perform. It was said, if they allowed a court of law to decide upon their privileges, they would not know where the encroachments of courts of law would end; that, by and by, they would be denied the privilege of speech; and that, in the end, the whole of their privileges would be sacrificed to the usurpations of courts of law. Did the legal history of the country go to sanction such an argument? Had the courts of law heretofore been slow to acknowledge the privileges of the House of Commons? In every case, except that of Ashby v. White, from the earliest case after that down to the case of Burdett v. 275 Abbott, the courts of law had always upheld their privileges. That in one single case in the course of a century, the courts of law had decided contrary to what the House of Commons believed to be their privileges, was no evidence of a systematic opposition to their privileges. It was urged that the House of Commons ought not to proceed by writ of error in a case affecting their privileges; that they ought not to submit their privileges to be decided upon by the House of Lords. This was equivalent to saying that the question should never be decided at all; for a declaratory act of Parliament was the alternative recommended. Such an act, however, must have the assent of the other House of Parliament. The House of Lords must declare it to be the law, that the House of Commons possess the privileges which they now claim. What would this be but a submission to the House of Lords of the question, whether or no such privilege existed? If there were a writ of error, the House of Lords must declare the same thing, upon inquiry into this unfortunate judgment, of which the House of Commons seemed to think so much. Why should there be so great a fear of submitting this question to the House of Lords? That was the highest tribunal of appeal in the country; and if they were content to trust matters relating to character, to property, to their liberties, and even to their lives, to the judgment of the House of Lords, why not trust them to decide upon their privileges? If there was one question more than another on which an unfavourable judgment by the Lords was not to be dreaded, it was precisely this question of privilege; because the House of Lords could not deny the privileges of the House of Commons without at the same time denying their own. But certain consequences must ensue from a refusal on the part of the House to submit the judgment of this question to the House of Lords. Was there any Member who believed, that Mr. Stockdale was dragged an unwilling prisoner to their bar? Did any one doubt, that Mr. Stockdale was most desirous of coming before them, and of prolonging to the utmost this unseemly contest? On the contrary, he came before them at the very first summons—he addressed them with a firmness of tone which they unfortunately had not followed up in their resolutions. He defied their power and despised their threats, Why? Because he was well 276 aware that, upon the rashness of their course, he was building his fortunes; and because, in consequence of the House having forbidden the Attorney-general to appear to the second action, he had recovered damages, not against the Messrs. Hansard, but against the House of Commons. With such a person, see the consequences of the course proposed to be pursued by the House of Commons. On the very day of the prorogation, Mr. Stockdale would be in a situation to commence an action against the sergeant-at-arms for every day during which he remained in custody. As an addition to the fortune he would make at their expense, he would bring his action, not against the sergeant-at-arms in his official capacity, nor against the Speaker, but against Sir William Gossett as an individual; and there would be nothing on the record to show, that the act for which compensation, was sought was done by order of the House of Commons. Before the House could meet again the case would go to trial. Mr. Stockdale would be represented to the jury as a man who had been utterly ruined by order of the House of Commons; and it was not to be supposed that the jury would, under the circumstances, be very particular in their verdict. Ought the public to be made the victims of such a contest? The House would be obliged to vote sum after sum to indemnify their officers. Ought they not rather to say, "We, the representatives of the people, feel a confidence in the judges of the land—we know that the law will be administered fairly to the country. Why persist in maintaining this question of privilege, not for the benefit but to the injury of the people? Why continue to heap up expenses on them, and degradation and disgrace on themselves? They draw a man from the most unfathomable obscurity—a man whom it was impossible to injure, but who must be a gainer at every step of the contest, and who, come what would, must enrich himself at their expense. Next came the sheriffs. They were the sworn officers of her Majesty whose first duty it was to obey the writs issued to them from the different courts at Westminster Hall. In the present case they had endeavoured faithfully to execute the writs issued to them; they had levied a sum of money; and now, for the first time in the legal history of the country, the House of Commons 277 was about to step in between the Court of Queen's Bench and the officer, to put their hand into the pocket of the sheriff, and hand over the money levied under the writ to whomsoever they might think fit to receive it. Why, even in the most tyrannical times of Parliamentary authority—in the day of the origin of this supposed privilege—in 1641, in the time of the Long Parliament, there arose no instance of such positive and direct tyranny as that which was sought to be resorted to in the present case. Could any case of tyranny be found to equal the present—when, an action having been regularly commenced in one of her Majesty's courts, by one of her Majesty's subjects, the House of Commons, without any semblance of justice, were about to call on the sheriff to disobey the writ—to take from him by the strong arm of arbitrary power money, received by him in pursuance of that writ, and then leave him to bear the consequences? Before another week elapsed the sheriffs would be compelled by the Court of Queen's Bench to pay the money over. Was it fair, was it just, that these public officers, who were wholly free from blame, should be compelled, as inevitably they must be, to pay over again the sum of 690l., merely because they had presumed to obey one of her Majesty's writs? This was the first case that had ever arisen in which that House had proposed directly to interfere with the regular proceedings of courts of justice, and not merely to interfere with the proceedings of courts of justice, but also to interfere to take money from the pocket of the subject, without any Parliamentary authority for doing so. He called on the House at once to set the example of yielding to the laws, and thereby secure the welfare of the community; and to avoid, and at once abandon a course, which could only bring disgrace and degradation, on themselves and rouse a spirit of discontent in the people, of whom they were the representatives. The hon. and learned Gentleman concluded by moving, by way of amendment to the first resolution, in relation to the sheriff of Middlesex, the following resolution:—That it appearing to this House, that an action has been brought against James Hansard and others, for the publication by them, under an order of this House, of certain papers containing libellous matter upon John Joseph Stockdale, and that judgment has been 278 obtained and execution issued by due course of law against the said James Hansard and others, in such action, it is expedient that the said James Hansard and others be indemnified against all costs and damages by them sustained in respect of such action.
§ Lord Eliot
having given two or three silent votes upon this subject, would address a few observations to the House upon that occasion. The question before them was one which it was of the highest importance should be kept free from all party feeling; and it grieved him to observe that some hon. Members did not appear to be of that opinion, in consequence of which more asperity had been observable during portions of the debate than he thought was necessary. He should not follow that course; but in saying so he did not attribute unworthy motives to those hon. Members. No man desired more anxiously than he did to see all the privileges of the House of Commons carefully preserved, they being, as he believed, for the benefit of the community; but he should express a doubt as to whether the hon. and learned Gentleman who preceded him had not drawn too broadly an instance of the extent of the privileges of the House, by saying that no Member of that House could be punished for any act he might do in that House. Supposing that in former days, when great excitement prevailed, that one Member killed or stabbed another, would not the criminal law of the country have a jurisdiction over that offence, which would not be affected by the privilege of Parliament? He should not stop to inquire as to whether that case had been put too broadly, but he should ask, with respect to the question before them, would not the injury done to an individual more than counterbalance any good that might be expected to arise from the assertion of that privilege? Were there not other means which might be adopted to prevent such a statement as that which had been the cause of the proceedings which were then occupying their attention? In the evidence respecting prisons, would it not be sufficient to have stated that an improper book had been found in a prison without stating any thing about Stockdale? In what was the case strengthened by naming Stockdale? He was of opinion that if due caution had been used, the grounds which Stockdale based his action upon would not have been afforded. But Stockdale had not suc- 279 ceeded upon the merits of his case, and he should again remark that, if due caution had been observed, that for which Stockdale instituted the action might have been avoided. If it were, however, necessary, for the benefit of the country, that all the proceedings of the Parliament should be laid before the public, it was only fair that the public should pay for it. If the noble Lord succeeded in his motion, if he succeeded in making the judges of the court say that was law which they then denied was law, it was only fair that at least he should give those individuals who were charged, an opportunity of appearing at the bar to answer the charges which had been made against them. The question to be elicited was one of great importance; it was whether this privilege had a legal and constitutional existence, or whether it depended on the right claimed for the House of being the sole judge of its own privileges. This question would be brought to a more satisfactory issue by adopting the amendments of the hon. and learned Gentleman, than by adhering to the original proposition. He had, therefore, great pleasure in seconding the Amendments.
The Attorney General
did not rise to follow his hon. and learned Friend into the various legal arguments which he had brought before the House. He had two strong reasons for avoiding that course; first, that his hon. and learned Friend had not moved to rescind the resolutions of May, 1837, which, while they remained on the journals, must be considered as the foundation of any proceedings on this subject; and, secondly, that there was now no room for delay or postponement, because from information on which he could rely, he knew that a motion would be made at the sitting of the Court of Queen's Bench the next day, to make the rule absolute to compel the sheriff of Middlesex to pay the money to Mr. Stockdale. To-night, therefore, they must come to a resolution on the question, and he hoped they would come to a resolution which would be obeyed by the sheriffs of Middlesex, and afford them sufficient cause to show against the rule. With regard to the two resolutions to which his hon. and learned friend had referred, he thought they had met with such strong support in that House, having been passed almost unanimously, and no motion to rescind them having been made, they must be looked upon as the found- 280 ation of their proceedings on this subject. He trusted, indeed, that no one entertained any doubt as to the fundamental necessity of maintaining their existing privilege of publishing whatever they might consider necessary for the public benefit, and for the due performance of the functions vested in them. That privilege rested on the foundation of necessity, of exercise, of acquiescence, and of authority. It was allowed on all hands (and he believed his hon. and learned Friend would admit it too), that that Hose could not properly perform its functions, unless it were at liberty to publish to the country the information on which it acted. This was a privilege that had existed for upwards of two centuries, and had been invariably exercised. He did not go back to the time of Richard 1st, or to the origin of legal memory. Printing was then unknown; but if there were any new mode by which information could be conveyed to the people, it might be adopted by the House of Commons from time to time. Since the year 1641, there had been a uniform acquiescence in this privilege. During the whole of that period, had there been any proceeding, either civil or criminal, against any Member, against the Speaker, or against any officer of the House of Commons, on account of anything done by them pursuant to the order of the House? In the case of the King v. Williams, there was an information by the Attorney-general; but that was illegal and unconstitutional. Since that time, the House had been in the constant and uniform practice of publishing matters which would be likely to give rise to prosecutions, but no such prosecutions had ever been instituted. During that period, there had been many persons like Mr. Stockdale, who, if they had thought that an action could be maintained, would have been anxious to place themselves in a similar situation. Yet no attempt up to the present time had been made to impugn what had been done under the authority of the House of Commons. For authority he would refer to the Bill of Rights itself, which says, "that no person shall he questioned for what he has done in Parliament." which meant also, what is done by authority of Parliament. [Oh!] Did Gentlemen who issued that sign mean to assume that the Speaker should not be exempted from indictment or action, but that what was done by the authority of that House should render the clerks at the table or the ser- 281 geant-at-arms liable to action or indictment? Those who framed the Bill of Rights well knew and were anxious to declare that anything done by the House of Lords or the House of Commons could not afford any ground for bringing an action or preferring an indictment. In the King v. Wright, the judges laid down, that no criminal information would lie against a printer for any matter printed by order of the House, but they further held, that matter so printed by order of the House, might be reprinted without subjecting the party so reprinting it, to any criminal proceeding. The King v. Dangerfield could not properly be used as an authority on the opposite side. He had looked with the utmost care into all the reports of that proceeding, and he would venture to affirm that there was not the slightest reason to suppose that the defendant was indicted for acts done by him in pursuance of the order of the House, or that he ever set up the authority of the House as his defence. That Dangerfield was committed for what he had done under the authority of the House, was a mere gratuitous assertion. With regard to the question of that House being the judges of their own privileges, he would not occupy their time further than to state, that the judges from the earliest times, down to Lord Tenterden had held, that the Houses of Parliament were the judges of their own privileges. Among the great names by whom this doctrine had been laid down were Lord Coke, Mr. Justice Blackstone, Chief Justice De Grey, Mr. Justice Powys, Mr. Justice Powell, Lord Camden, and Lord Chief Baron Comyn, [Sir E. Sugden Where does Lord Camden lay down such a doctrine?] Lord Camden, in the case Entick v. Carrington, observed, that:—The only instance of the power to commit without the power to examine on oath, that can be produced, is the practice of the House of Commons, but this instance is no precedent for other cases; the rights of that assembly are original and self-created; they are paramount to our jurisdiction, and above the breach of prohibitions, injunctions, or error.But then it was said, what were the judges to do? Were they not to decide upon matters of privilege when brought before them? Undoubtedly, when a question of privilege arose incidentally before them, they were bound to decide on it; but they were to decide according to the rule laid down by Parliament. Either House of Parliament was a court of peculiar and 282 exclusive jurisdiction as regarded their privileges, and every court of law was bound to decide according to the decision of either House, whenever a question of privilege came directly or incidentally before it. The hon. and learned Member for Ripon, on a former evening, had cited a number of cases in which the Judges had asserted their right to inquire into the privileges of Parliament. If the hon. and learned Member would examine those authorities, he would find that they referred to one of two alternatives; either where a question of privilege arose incidentally, and where the judges of course must decide it, just as they would decide upon the law of France, or Scotland, or Holland; or to cases (which cannot decently be put) where a House of Parliament clearly travelling beyond its jurisdiction should make an order so monstrous, illegal, and preposterous, that no attention ought to be paid to it. For instance, if the House of Commons were to order a man to be put to death for some supposed offence. Would any one deny that to make an order as to the publication of papers essential to its proceedings was within the jurisdiction of Parliament? Would the hon. and learned Member for Exeter, the hon. and learned Member for Ripon, the hon. and learned Member for Ipswich—the order in question being within the jurisdiction of the House of Commons—deny that the House had a right to issue it? They must one and all declare, that the judgment of the Court of Queen's Bench in "Stockdale v. Hansard" was contrary to law. Great as the difficulty was on one side, there was still greater difficulty on the other. According to the course recommended by his hon. and learned Friend, the Mem- for Ipswich, Mr. Stockdale would to-morrow morning obtain his 600l., and the House would lay down as a principle to be acted on, that every court of law in the kingdom was to judge of their privileges—of privileges without which the country never would have maintained its free constitution. But in all times to come they would have no means of vindicating their privileges, if they allowed them to be violated in the present instance. His hon. and learned Friend said that the House might trust its privileges with perfect safety to a court of law. Our ancestors thought no such thing. They entertained no such opinion. The House of Lords thought no such thing; for that House, as well as our predecessors in this 283 House, thought and felt that it was only by themselves keeping a strict guard over their privileges that they were secure of them. He rejoiced that they were not engaged in the struggle for any individual privileges of the Members; but they were engaged in a struggle for the public. They were engaged in a struggle, that the public might be informed of their proceedings; and that the public might know something more of the laws than merely to be called upon to obey them. But let us see whether the course pursued by his noble Friend, the Secretary for the Colonies, would not be attended with much less danger and inconvenience than any other that could be suggested. His noble Friend's proposition was, that the sheriff's should be required to pay back the money, the result of the levy and execution in the suit, to Mr. Hansard, and there could be no doubt that if they refused to do so, that they would be subject to the displea- of the House. His hon. and learned Friend said, that such a proceeding would be contrary to law, for an action had been brought; the plaintiff had obtained a virdict; the damages had been assessed, and judgment and execution followed, and it would be against law to prevent their letting the plaintiff obtain the result of the verdict in his favour. But this was begging the whole question. If this action were properly brought—if the proceedings did not interfere with their privileges—if the Court of Queen's Bench had jurisdiction in the matter—and if a duly verdict had been obtained, then it would be a most monstrous injustice on the part of the House to interfere. But the truth was, that the action was directed against their proceedings—it was an unlawful proceeding from the first—it was void, unconstitutional, and contrary to law, and they were actually conforming to and vindicating the law when they interfered to prevent the verdict being carried into effect. This was an action and proceeding which should never have been commenced, and therefore, the sheriffs would only do right to obey the order of the House. The sheriff's had sworn truly to return and truly obey all the Queen's writs, and the oath that they had taken had been much relied on by Gentlemen opposite to show that they would be guilty of perjury if they did not execute the writ of fieri facias, and hand over the result of the execution to Mr. Stockdale. But the sheriffs had sworn to obey the law, and if they did so, by obeying the order of House of Com- 284 mons they would act in conformity with their duty, and they would satisfy their consciences. The oath of the sheriff ran—" I will truly return and truly serve all the Queen's writs according to the best of my skill and knowledge;" but at the same time the sheriff, or those who acted for him, were bound, before they executed the writs to see that they were lawful, and that they had not been superseded by lawful authority. If the sheriff received a writ to seize the goods of any one, he was bound to obey it; but he might subsequently receive an order from the Lord Chancellor, the Vice Chancellor, or the Court of Exchequer, directing him not to do so. If he obeyed the latter, was he to be considered guilty of perjury? Certainly not: because he obeyed the law which superseded the former writ. This was a very common proceeding from the courts of equity, and no one ever thought of resisting this order. But the sheriffs' oath proceeded thus—I will truly and diligently execute the good laws and statutes of this realm, and in all things well and truly behave myself in my office, for the honour of the Queen and the good of her subjects, and discharge the same according to the best of my skill and power.If, then, part of the good laws of the realm were the privileges of the House of Commons, and it was intended that they should be obeyed, it was only part of the oath of the sheriff that he should obey the order of the House and pay the money in his hands to Mr. Hansard, from whom it had been illegally taken. In this case where was the difference between an injunction of the Court of Chancery and an order of that House, when the House had jurisdiction over the Sheriff? The order of the House would not run during the vacation; but if the order was issued now, they had the means of enforcing it, or at least of punishing the neglect of it. It was part of the caution given to all sheriffs' officers by the sheriffs—and so particular were they on this point, that it was stated that they should "take care before you levy; beware the parties are not privileged as ambassadors or servants to ambassadors, or any otherwise privileged or protected." This was a specific caution to sheriff's' officers to avoid executing any writ against any privileged persons. The oath of the sheriff required that he should not seize the goods of ambassadors or the servants of ambassadors. Was not the order of the House of Commons equally sufficient to prevent the seizure of the goods of one of its officers, and were 285 not these officers privileged persons just as much as the servants of ambassadors? The sheriffs may obey the order of this House, and he felt satisfied that they would not disappoint the expectations formed of them by the House and the public, and thus oblige those who were so anxious that the privileges of that House should be abolished, or that we and our privileges should be made to depend on the House of Lords or the Court of Pie Poudre. Was it to be suffered that the Court of Queen's Bench should make an order to the sheriff to pay the money over, or, in case of refusal, to issue an attachment? But he did not believe that that court would do anything of the kind, because when it appeared that the sheriffs acted bonâ fide, and were anxious for the due discharge of their duty, and when they showed to the Court of Queen's Bench the order made by the Commons of Great Britain to return the money to Mr. Hansard, and that they had only acted in obedience to that order, he did not believe that the Court of Queen's Bench would act so unjustly, so arbitrarily, and so harshly, as to issue an attachment and send the sheriffs to prison. If this course were pursued, and if the result that he anticipated followed, they would get rid of all difficulty in the case, and neither Mr. Stockdale nor any other persons would persist in actions like that against Mr. Hansard when they saw that such actions were useless, and that they failed in obtaining damages through the interposition tion of the House. But the other course might unhappily be pursued, and if it should, he trusted that the House would not hesitate as to the discharge of its duty. He entirely concurred in the eulogium passed on the sheriffs by the right hon. Baronet, the Member for Tamworth, and he thought that, as individuals, they had acted fairly and honestly, and were most anxious for the discharge of their duty. But that House was engaged in a vital struggle, and if they should take the false step of abandoning the line they had adopted, all the privileges which they possessed, and which were essential for the due discharge of their functions, would pass away for ever. No other step would be pursued than proceeding against the sheriff if he disobeyed the order of the House. They would be placed in a painful situation, but they had no other course to pursue, and he, for one, would not shrink from his duty, but should recom- 286 mend the House to proceed against these ministerial officers if they infringed these important privileges, which had been handed down to the House of Commons from the earliest time. He did not complain of the conduct they had hitherto pursued, but if they refused to obey the order of the House, and insisted on pursuing the contrary course, and paying the money over to Mr. Stockdale, he should not hesitate as to the line to be taken, and although it would be with great pain and reluctance, still he felt there would be no other course open to them than to proceed against them. This would be acting upon the principle which both Houses of Parliament had ever pursued in cases of this nature. He was justified in this opinion from what had before occurred in that court. In the case of Winter v. Miles, where there was an action against the sheriff because he did not execute a writ of fieri facias, on property in Kensington Palace, the sheriff stated that he did not execute the writ because lie was advised that it would he a breach of privilege, and Lord Ellenborough said, that he considered that the sheriff was justified, as he was not to expose himself to the peril of being proceeded against by the Board of Green Cloth. So he took it for granted in this case, that the court would be satisfied if it appeared that the sheriff acted bonâ fide, and that he considered that he was bound to obey the orders of the House of Commons. He had collected a number of cases and authorities illustrative of this point, which he would proceed to state although he was aware that they might appear to many hon. Gentlemen to be dry details; and he trusted that he should be excused if he occupied some portion of time in laying these proceedings before them, and showing that the practice of the House of Lords, as well as that of the House of Commons, justified the course which the house was now called upon to adopt. It had been laid down by his hon. and learned Friend, the Member for Ipswich, that the House could never interfere with an action in a court of law, and that they must allow every case to proceed before the proper tribunal. Now, the celebrated Aylesbury case, which occurred in 1704, and to which such repeated references had been made, was a striking instance to the contrary; and he would proceed to state some few other cases illustrative of this point, which had occurred before the House of Lords, as well at before this House. In Clark's case, 287 which occurred in 1585, the Lords ordered that the Marshal of the Queen's Bench should stand discharged of any action for liberating a debtor by their order. There was another ease that occurred in 1625 before the other House. A petition was presented from the Viscountess Parbeck, complaining of arrest, of her coach and horses taken. The parties who arrested her, and the bailiffs who attached were ordered before the House. The plaintiff' and the person prosecuting the attachment, and those who executed it, were brought to the bar and committed to the Fleet. This was a remarkable instance of the summary interference of the House of Lords to stop proceedings commenced in breach of the privileges of the peerage. Another case occurred in 1695, when Sir John Butler and Mr. Leighton, brought an action against the Sergeant at Arms for a trespass. The House of Lords ordered that the action should be discharged, and interfered in a summary manner for this purpose, and attached these parties, and sent them to jail for instituting proceedings against the Sergeant at Arms, for acts done in discharge of his duty, and in obedience to an order of the House. The next case that he should refer to, occurred in 1678, namely Surcold's case, in which the House of Lords ordered the party to be attached for misbehaviour, and arresting persons for what they did in the service of the House. The next was Burron's case, in 1690, when the party was attached for proceedings at law in contempt of an order of the House of Lords. Another case of importance which occurred was that of Digges', in 1587, and which was described at length in the Lord's Journals. The party in this case was gentleman to the Archbishop of Canterbury, and was committed to the Fleet upon a reddit se in discharge of his bail in the Exchequer. The House of Lords commanded the gentleman usher to bring Digges before them, and having heard the Barons of the Exchequer and Digges, they ordered him to be set at liberty, and that the warden of the Fleet should be discharged of his prisoner, and of any action that might be brought against him. Another case was of Hogan in 1601. The party in this case, being a servant of the Queen, was arrested by the under-sheriff of Surrey. Complaint was made to the House of' Lords, and that House, after a debate as to whether he should be brought from the Fleet by a war 288 rant from the lord-keeper, or by the immediate direction of the House (through the gentleman usher), ordered the latter course to be adopted. Upon Hogan giving a bond to abide by the order of certain Lords as to the payment of the sum for which he had been arrested, he was discharged out of prison and execution, and the House ordered that the warden of the Fleet should be free from any trouble, damage, or molestation, for Hogan's discharge. The under-sheriff was also ordered to attend the House, and directed, that no action should be brought. Another case in the Lords' Journals was that of Biggs, 1768. An action having been brought for false imprisonment against a justice of the peace, who bad committed a man to prison by order of the House of Lords; in this case, the Lords ordered the action to be discharged, and the attorney was committed to Newgate, and the plaintiff to the custody of the sergeant-at-arms. The next case he should quote was that of Mr. Hyde, in 1788. This person was a justice of the peace in Westminster, and indicted a person acting under order of the House, and Hyde was called before the House and committed for the contempt. The next case he should refer to was that of a more recent date, and was well known as the Umbrella Case. It was that of Bell v. Plas. Some erroneous impressions prevailed with regard to this case; it had been supposed, that the action was brought in the Court of Conscience against the defendant for taking an umbrella from the plaintiff in the House of Lords. The action was to recover the value of the umbrella. The plaintiff recovered judgment for the full value of his umbrella, and he was about to issue out execution, when the House of Lords interfered, and ordered him to the bar, and would have committed him to Newgate, if he had not renounced the benefit of his judgment, and promised submissively not to interfere further. The officers of the Court of Conscience pleaded ignorance of the breach of privilege, and apologized. This case occurred so recently as 1827. Thus it appeared from these cases that the House of Lords, had, from the earliest period to the present time, interfered to put a stop to actions in the court of law in violation of their privileges. So much, then, for the proceedings before the House of Lords, and he would now proceed to show what had been done by this House. The first case that he should refer to as coming before 289 that House was that of Ferrers, in 1543, in the reign of Henry the 8th. Ferrers was elected member for the borough of Plymouth, and was arrested in London by process out of the Court of King's Bench, and was carried to the Compter. The sergeant-at-arms was ordered to go to the Compter and demand that he should be liberated. It was the custom of the House to send to demand the liberation of any of its Members who were improperly imprisoned, and to demand that he should be instantly liberated. The sergeant went to the Compter for this purpose, but the city officers resisted him, and a scuffle ensued in which the sergeant's mace was broken. The sheriffs came and took part with the officers, and the sergeant-at-arms was obliged to go without his prisoner. The sergeant again was ordered to go to the prison, and take a greater force with him, and liberate Ferrers by the mace without writ of privilege. He succeeded in liberating the prisoner. What was done next? The sheriff and the other officers were summoned to the bar, and all the officers that had taken part in the matter were compelled to appear before the House. The sheriffs were committed to the Tower, and the other officers were sent to other prisons, where they all remained in custody until they were discharged on making their humble apology to the House for the course they had taken. The course that was then pursued was approved of by the King and the House of Lords. This proceeding was not by making any application to a court of common law, but the House vindicated their privileges by their own officers, and by their own process without writ of privilege. The next case that he came to, occurred in 1604, and was one of considerable importance. It was that of Sir Thomas Shirley, who had been recently elected a Member of the house, was arrested by the sergeant-at-mace, and confined in the Fleet, upon which the House awarded a writ of habeas corpus. The warden would not execute the writ, and was called to the bar of the House, where he refused to give up his pirsoner. The House then ordered him to be committed to the Tower. Upon further refusal he was committed to the dungeon of Little Ease, and he, subsequently, made a full apology on his knees. The next case he should refer to occurred in 1676; it was that of Sturmey. This person was an attorney, and was committed for breach of privilege, for commencing an action against a Member. In 1704, several memorable 290 cases occured, when many persons were committed; and this was after the House of Lords had decided that these actions could be brought. Notwithstanding this, these persons were committed, and the Judges held that the commitments were good. The judge who dissented from the opinion of his brethren was Chief Justice Holt, but Blackstone said, that he was clearly wrong, and this was confirmed both by Lords Ellenborough and Tenterden. The judgment of the judges in the Aylesbury case had always since that time, been taken for granted. In the case of Jay v. Topham, which was decided in the Convention Parliament, in which the foundation of our free constitution was confirmed and placed on a solid foundation, the results were most important. In this case, Chief Justice Pemberton and Mr. Justice Jones were committed for giving judgment against Topham, sergeant-at-arms, in an action brought against him for exceeding the order of the House. They were, in the first place, called to the bar, and admitted that they should not have been justified in the course they pursued, if there had been a proper plea of privilege of Parliament. The House, however, was not satisfied, and these judges were committed to the custody of the sergeant-at-arms. This did not occur in the bad times that his hon. and learned Friend had referred to, of 1640–41; but it was done in the Convention Parliament, at the brightest period of our history, when the proceedings were carried on under the auspices of Lord Somers, and when Holt was a Member of that House, and exercised great influence in guiding its decisions. He would now refer to a very valuable report, which was made in 1771, when Brass Crosby was committed to prison for a gross breach of privilege in consequence of his having committed a messenger of that House to prison for executing the orders of the House. A Committee of that House was appointed to inquire into the matter, and they made a most valuable report to the House, in which the whole question is reviewed with great ability and learning. This report was to be found in the 17th volume of the Parliamentary History, page 199. The report after stating that the privileges of the House had been violated in various ways, and after proceeding to describe them stated:—In order to lay before the House the result of their inquiry with tolerable brevity, and some degree of method, the committee have 291 reduced under three general heads the obstructions which have been given at different times to the orders of the House, and under each of these heads have ranged the different modes in which these breaches of privileges and contempts have been offered; and then submit to the consideration of the House the several methods of proceeding which the House hath opposed to these offences, the proofs of which proceedings appear by cases referred to in the margin of this report. The three general heads of breaches of privilege and contempts of this House, are namely, those arising from first evasion. Secondly, force. Thirdly, colour of law. Offences under the first and second of these heads have been committed—by the absconding of the parties summoned—by open resistance to the officers of the House—and by riots and tumults—by the refusal of civil officers to assist the sergeants or messengers of this House, or to release persons entitled to the privilege of this House when detained in their custody. It appears also to your committee, as well from searching the journals of this House, as from other authentic evidence, that in order to remedy the abuses, and to remove the obstructions above recited, this House has proceeded to support their privileges, and to enforce the execution of their orders, by the following methods:—namely, 1. By addressing the Crown to issue proclamations for apprehending those persons who thus stood in contempt of the House. 2. By renewing their orders against such persons, and committing them in a subsequent Session of Parliament. 3. By orders to mayors, bailiffs, and sheriffs, to assist the sergeant or messenger for the apprehending of such persons; or to the sergeant of this House, to call on the sheriffs of Middlesex, and the sheriffs of other counties, and all other magistrates and persons for their assistance. 4. By committing for breach of privilege of this House, those officers of the peace who have refused their assistance to the sergeant of this House when so called on. 5. By imprisoning those who refused to release persons entitled to the privilege of this House, and by increasing the severity of their restraint, according to the nature of the offence and in consequence of the contumacy of the offender.Each part of this statement was justified by numbers of cases quoted in the margin. He thus thought that he had shown sufficient to justify the view that he had taken of the case, and, above all, in proving that they had committed judges and all other parties for carrying on suits or actions respecting matters in any way affecting their privileges. All that he now contended for, from the cases that he had cited, was, that it was manifest that the House had repeatedly stopped actions commenced in contempt of their privileges, and that they had the power to order any action to be 292 discontinued, and the proceedings annulled, when in violation of their privileges. He had also proved it from the report of the committee of 1771, fortified as it was by so many cases and precedents; and he trusted now, as they had ever done before, that they would not suffer their privileges to be questioned by any tribunal in the country, either high or low. But it was not merely the House of Lords and the House of Commons that possessed this privilege, but other inferior tribunals also possessed it; for the Court of Chancery and the Court of Exchequer repeatedly stopped actions brought against those acting under their orders. He was unwilling to detain the House, but he could mention a great number of cases in which the Court of Exchequer had removed actions brought against officers of revenue in their own court, and ordered the proceedings to be stayed. On this point he would only mention the cases of Cawthorn v. Campbell, Benhold v. Candy, Penny v. Bacley, Penny v. Pennington and Baring v. Sutton. There were also many cases in the books in which the courts had restrained parties from proceeding against officers in other courts. Such were the cases of Bacley v. Devereux, and May v. Hood. There were many cases reported, indeed the books swarm with them, in which the Courts of Equity ordered actions brought against sequestrators and receivers to be discontinued. There was the case of Frowd v. Lawrence, in which a party was restrained by the Court of Chancery from bringing an action at law for damages, even when irregularly attached by that court. The privilege, then, that was exercised by the Court of Exchequer and the Court of Chancery had been acted upon from the earliest period by both Houses of Parliament, and would they consent now to tie up their hands in this matter, when their dignity had been so grossly insulted? No one felt more deeply than he did the importance of this subject. It had given him the greatest anxiety, and it was not without pondering the whole case most deliberately, and considering it in every possible point of view, that he ventured to recommend the course which it was now proposed to adopt. Let the House do its duty. Let it employ those means which the law and the constitution vested in it for the preservation of its privileges. In doing this, the House would not be to blame; but it would be blamed by all posterity, if without making a strenuous effort, it were to sur- 293 render these privileges which the representatives of the people had inherited from their forefathers. He was not afraid of the tone of public feeling. He believed that the public, the more they understood this question would the more approve of the decided part that it was proposed the House should take. He believed, on the other hand, that the public would greatly censure the House, if, from any timidity, it was now to draw back and succumb to the courts of law. The House might be in some difficulty, but he believed that the boldest course on this occasion would prove the safest. It was only from timidity and vacillation that any real danger would result. Let the House be firm; let it be consistent; let it act with vigour, at the same time that it acted with moderation; and he had no doubt that the issue would be successful, and that their privileges would be preserved, and be handed down to the latest posterity.
§ Sir E. Sugden
felt the disadvantage which he laboured under in following the hon. and learned Member who had just sat down, not only on account of the difficulty of coping with the talents of the hon. and learned Gentleman, but because he had, from the commencement of the discussions on this question, resolved to conduct himself with moderation. He had as great a respect for the privileges of the House, as the hon. Members who took an opposite view of the case, and he therefore respected the opinions which they conscientiously entertained. He had never heard a speech that struck him with more surprise than that to which they had just been listening. He should not speak of the singular position in which the hon. and learned Member was placed, by being at the same time the Attorney-general of the crown and the accuser of courts of justice. But he must express his astonishment at the proposition, that whatever the House of Commons chose to assert was to be taken as the law of the country. The hon. and learned Gentleman told them that the judgment of the Court of Queen's Bench was an illegal judgment, while the resolution of the House was legal, just, and binding. Was it possible to proceed with the argument in that way? Was not the judgment of the Court to be considered as a proper one until it was reversed? But he supposed it would be said, that although the judgment might be right in point of law, still the House did 294 not choose to leave such a question to the decision of a court of law. That argument would leave the decision of the judges intact. The hon. and learned Gentleman had made a great number of assertions, but among them there was not a single observation, not a single proposition, that was not directly opposed both to law authorities and the constitution. Now let the House see if he was justified in making this sweeping and bold assertion. The hon. and learned Gentleman said the resolutions of the House were supported by necessity, acquiescence, and authority. The necessity he took for granted, and the acquiescence he proved by stating that no attempt had ever been made to impugn the jurisdiction now claimed since the time of Mr. Speaker Williams. But how did this statement accord with the facts of "Burdett v. Abbott?" Was not that an action against the Speaker of the House himself? Was not the Speaker—he would not say dragged before the Court of King's Bench, but did he not, instead of seeking to withdraw himself from the jurisdiction, of the court, walk gracefully forth, accompanied by the Members of the House, to submit its privileges to the judgment of the legal tribunal? The case was argued with all the learning and all the zeal which the English bar could supply, and was afterwards decided by a judge who was most anxious to preserve the proper privileges of the House. Did the House stop the case at that stage? Did it say, that one court of law having decided in favour of its privileges, it would not suffer them to be questioned any further? On the contrary, it suffered the plaintiff to bring the case before the Exchequer Chamber, and after that, the plaintiff remaining still unsatisfied, the House allowed an appeal to be made to the House of Lords, which was now looked upon with so much dread—a dread altogether groundless; for, if the House of Commons relied on its privilege, it might go with confidence before a body whose privileges were identical with its own; while, if the matter were discussed as a matter of law, the decision in "Burdett v. Abbott" showed that no apprehension need be entertained of an unfavourable result. In that case the question was, whether the House of Commons had a right to commit one of its own Members; and if there ever was a case which would justify the House in standing upon its privilege, and refusing to allow any other 295 tribunal to interfere, "Burdett v. Abbott" was that precise case. Yet the House had not taken any such course then; and how different was the present case from that, and how beset with difficulties on every side—the privilege now claimed being that of selling out of the House, in the exercise of what he maintained was a new authority, and of a privilege which the House of Lords itself did not assume, publications occasioning serious damage and a lamentable grievance to one of her Majesty's subjects. The hon. and learned Gentleman was therefore wrong in this statement of his; but the next proposition astonished him still more; it was, that the present case was provided for by the Bill of Rights; that, certainly was an opinion which would take the profession by surprise, and would cause Westminster-hall to resound with—he knew not what—echoes. Anything more unfounded, more wantonly incorrect, any more complete and utter misstatement, it had never been his fortune to hear. Why, what the Bill of Rights provided for was the personal freedom of the Members of the House of Commons, and it had as much to do with a case like the present as Tenterden steeple had with the Goodwin Sands. He understood the hon. and learned Gentleman to lay it down, that what was done by either House of Parliament could give no right of action; that was simply claiming on behalf of the Houses of Parliament a despotic power. The hon. and learned Gentleman had referred to "The King v. Wright," as deciding, that no action for libel could be brought upon anything that was published by order of the House; but the hon. and learned Gentleman omitted to notice, that the House in that case had ordered the report to be printed for the use of Members only, and two of the judges, including Mr. Justice Lawrence, stated that they thought it no libel. It clearly was no libel for the House to print a report for the use of its Members, but the right of an indifferent person to publish that which, though it would be no libel in the House, would out of the House be a libel, was quite a different matter. The hon. and learned Gentleman had said, further, in speaking of this case of the King v. Wright, that from that time that case had not been denied or disputed. So far was this from being correct, the case had been repeatedly denied and disputed, as every lawyer knew. In the case of 296 Burdett v. Abbot it had been referred to, and in the case of Rex v. Creevy, Lord Ellenborough mentioned the case also, and observed, that that which was printed for the use of the Members only, was no libel; yet if that which was so printed for the use of Members only, and circulated among them, was afterwards circulated among other persons, by Members of the House, and deemed a libel, he was not prepared to say that it would continue to be covered by the privileges of the House. The hon. and learned Gentleman said, that a resolution of both Houses was binding. Take the case of "Ashby v. White." In that case the House of Commons resolved one thing, and the House of Lords decided just the reverse. The House of Commons decided that they had the privilege which they claimed in that case, and the House of Lords said it was a breach of every right of the subject. Now, if that should happen now which happened then—suppose the House of Lords was to decide against the resolutions of the House of Commons, and decide that it was not a privilege that House claimed, but an usurpation of the rights of the people of England—what would then become of the House and its privilege? The hon. and learned Gentleman said, the resolution of either House was binding against a court of law; suppose the House were to come to different resolutions on the question, he should like to know, in that case, where and what would be the event? Which would be on the right side, that House which had the four judges of the Queen's Bench with it, or that House which had the deliberate opinion of those judges against it. There could be no doubt which way the authority would go. As to the power of committing, there was no doubt the House possessed this power: it was incidental to it as a branch of the Legislature, and that power no other authority could annul. The hon. and learned Gentleman had referred to a great number of cases which came rather late into the field; the House should have had them submitted to it, before it exercised its authority against Mr. Stockdale. These cases, however, were all clear and acknowledged. The hon. and learned Gentleman had laid down a principle on a point of law, which deeply interested the whole country. He distinctly stated, that there was no deliberate resolution come to by the House, to which a court of law must 297 not give way; that if any question arising out of such resolution came before a court of justice, the court of justice must decide according to the resolution of the House, or its judgment would be illegal, for that the authority of the House was binding and legal. He could conceive no doctrine more alarming. The just privileges of the House were known and undisputed; and when the hon. and learned Gentleman told the House to beware lest it lost all its privileges—lest it saw its privileges unheeded, and itself reduced to a level with the Court of Pie Poudre, he knew very well that all the privileges which were necessary to the exercise of the functions of the House were guaranteed by the constitution, and by the law, and that no court existed which would dare to seek to overrule them. In mentioning the case of "Ashby v. While," the hon. and learned Gentleman had confounded the committal of Patey with the action against White by Ashby. He said, that in that case all the twelve judges, with one exception, held the committal to be good, and that eleven out of twelve consequently decided for the privilege. But how did that case stand? Ashby brought an action against White for rejecting his vote in the borough of Aylesbury. Chief Justice Holt held that an action would lie. The three other judges of the Court of King's Bench held that it would not. Subsequently three other judges decided with Chief Justice Holt; and as two judge's were absent, and two remained neutral, the opinions of the judges were equal, and the House of Lords decided by a considerable majority against the privilege claimed by the House of Commons of staying the action, and declared it to be an infringement on the just rights of the people of England. The House should recollect, that the privileges of the House of Commons were equally the privileges of the House of Lords. Formerly, when both branches of the Legislature were united, and were one body, the privileges were common to both; and when they separated, their privileges became the privileges of each. The only difference now was, that they exercised their privileges separately; but still their privileges were identical, mutatis, mutandis. Afterwards Patey brought a similar action to that which the House had decided was a breach of their privileges. He was committed. Chief Justice Holt said he could be dis- 298 charged; the other judges said he could not; for after the House of Commons had put a person in execution, no other authority could release him. The Attorney-general had said, that in the best of times the Convention Parliament had brought Judges Pemberton and Jones to the bar. Yes, they did, and a most cowardly act it was to do at any time. These judges had left the judgment-seat for seven years, and then, when again become barristers, they were dragged to the bar for acts done in their judicial capacity. It was a cowardly act, and one which no House of Commons would dare to repeat: an act which had been since utterly repudiated by every person who was at all acquainted with the constitution; and, assuredly, the hon. and learned Gentleman was the only lawyer in Westminster-hall, or who had ever spoken in that House, who would call the decision of those judges contrary to law. The highest authorities had declared their judgment free from impeachment; Lord Ellenborough had declared it impossible that they could have come to any other decision; all men, until the hon. and learned Gentleman spoke, had agreed that that judgment was unimpeachable, and that its authors were dragged to the bar as victims to the existing excitement of the public mind. If his hon. and learned Friend wouldlook to dates, he would find that the House was examining the case of Mr. Speaker Williams at the very moment they dragged those judges to their bar, and on that account, perhaps, they had been induced to go a little further than they otherwise would, to commit themselves to such an injustice. The argument of his hon. and learned Friend in the case of "Stockdale v. Hansard," he was persuaded, would descend to posterity, and be regarded, long perhaps after this debate had been forgotten, as a monument of great legal industry and acquirement, but he had failed to exhibit to the House the fruits of like careful investigation, indeed, his whole statement upon the present occasion was full of hurry, confusion, and inaccuracy. He admired the argument, but not the speech, of his hon. and learned Friend. After all, he was not, he confessed, prepared to enter into this investigation. Nothing appeared to him more extraordinary, than that the Attorney-general should come down at that time of day and state what the law was, after 299 Stockdale had been committed to the custody of the Sergeant-at-arms. The usual course was, first to decide the law, and then punish the party who was guilty of the contempt; But it seemed we were now reverting to the old practice of striking first, and judging afterwards—first committing Stockdale, and then learning the law. He would address but very few words to the House on the nature of the resolutions, which, strictly speaking, were now before the House. He should vote against them with the most perfect confidence. He called upon hon. Members to consider well the situation in which the House would be placed if these resolutions were carried. If, as he understood his hon. and learned Friend, the Attorney-general meant distinctly to tell them, that the House ordering the sheriffs to pay this money would be a good defence, which they might avail themselves of in the Court of Queen's Bench, he must say, he should be more surprised by the announcement than at anything else in the course of his speech. Was it possible? Considering the office which his hon. and learned Friend held—considering that he was here to direct the House, nay, more, having been counsel for the House, he knew his honourable mind was incapable of any intention to mislead them; but he (Sir E. Sugden) warned them not to rely on the statement—it was not law, and never would be law. The judges would not act on it. It was supposing, indeed an infirmity of the law. The House claimed this privilege before the judges by the mouth of the defendant. The Court of Queen's Bench first decided that they might examine into it, and next, that the House did not possess the privilege. The matter went on regularly to execution; the sheriff's had the money in their hands; then came another resolution of the House, that the sheriffs should not pay it over. But would that be more binding than the other resolution? The court decided solemnly, with great deliberation against the first resolution, and the same fate might await the second. The position of his hon. and learned Friend was absurd it was not law. Then what did the Attorney-general mean, what did her Majesty's Government mean, by telling the House that the sheriffs could make such a defence? It could not be done. The proceedings of to-morrow would show that it could not be done. Then the House would 300 see the broken reed on which it relied. He could not help thinking that in the presence of the parties themselves, a very paltry threat had been held out by the Attorney-general against the sheriffs. He was sorry to make use of such an expression, and, as it was contrary to the determination which he expressed at the outset, he begged to recall it. He meant to say it would have been better to leave to the sheriffs the grace of obeying the resolutions, because they were the resolutions of the House, than drive them into obedience by telling them if they did not, the Attorney-general must feel it to be his duty to move for their committal. What, then, would be the situation in which the House must be placed if these resolutions were carried? Suppose the sheriffs obeyed, tomorrow they would be ordered by the Court of Queen's Bench to disobey them. They would be ordered to pay the money to Stockdale. Nobody could for a moment suppose that persons in their position would go to prison: the only alternative, they would pay the money. They would then come by petition to the House, stating that they had acted regularly throughout in obedience to the order of the Court of Queen's Bench, in a case in which an officer was defendant and appeared by counsel; they were called to appear at the bar, informed that the authority of the House was paramount to the common law, and they must be committed if they refused to pay over the money to Messrs. Hansard. Respect for their personal liberty induced them to comply with that order. They went into the Court of Queen's Bench—they stated this upon affidavit—and the judges of that court told them the House had no such power as that which it arrogated to itself. They must pay the money to Stockdale. The sheriffs would then say to the House, "You told us you had a power which you don't possess: you ordered us to pay the money to Messrs. Elansard—we did so; we find the power of the courts of law at least equal to yours, for they made us pay also. Is it fair? Did you mean we should pay twice?" The House, of course, could not have that in contemplation, and thus eventually to redeem their own personal honour, the House would be compelled to refund the money. Was there ever a greater farce? The position in which the House would then find itself must be supremely ridiculous, In the case of Mr. Speaker Wil- 301 liams there was a very awkward clause, directing that the Attorney-general should pay the costs of the proceedings; he hoped, for the sake of his hon. and learned Friend, such a precedent would not be followed in the present instance. If the other branch of the alternative happened, if the sheriffs declined complying with the resolutions, the House must commit them. He prayed to God they might not go that length. It was impossible to estimate too highly the admirable manner in which those houour-able persons gave their evidence at the bar—holding a balance, but not equally, between the duty they owed to the Court of Queen's Bench, whose officers they were, and that House, and with an inclination preponderating towards that great branch of the legislature whose privileges they respected as much as any of its Members. He therefore did implore the House to pause before they took any farther step in advance. He hoped means would be taken to stop the future sale of this work. If not, they might depend on inhere would be more actions. [" Hear, hear" and ironical Cheers.] He understood that cheer. But if they were prepared to involve themselves in these accumulating difficulties—if they were determined to meet them from day to day, and from week to week, they would have occupation enough, and, in the long run, the issue would prove, he feared, not very creditable to themselves. It was not yet too late; he again implored them to pause before they took another step in this matter.
§ The Attorney-General
begged to say a few words in strict explanation, and with reference to one or two points which would serve as specimens of the way in which he had been misunderstood by his hon. and learned Friend. In the first place his hon. Friend had denied his statement that there had been an acquiescence in the privileges because they had been questioned in the case of "Burdett v. Abbott." Why, twenty such actions might have been brought, and yet the acquiescence for which he contended was untouched; for what he said was, that there had been for two centuries an acquiescence in the right of publishing whatever the House might think necessary or advantageous for the information of their constituents. With regard to the sheriff. He said in strict explanation, that, with regard to the sheriffs being attached by the 302 Queen's Bench, he by no means asserted that the court would consider the order of the House a sufficient excuse; but in his humble judgment, in point of law, it ought to be held a sufficient excuse. If they had the privilege of publishing, and if actions were brought contrary to that privilege, as in this case, the order of that, the superior court, ought to be considered an abundant justification of the sheriffs for paying the money according to its orders.
§ Viscount Howick
said, that perhaps it might appear presumptuous in one who had no claims to professional knowledge to interfere in the discussion of the present evening, which hitherto had been principally carried on by members of the legal profession. But he did think that this was a subject on which perhaps they had already paid too much attention to mere technicalities, to nice distinctions, and to splitting hairs upon judgments pronounced in former days, instead of directing their attention mainly to those leading principles of the constitution, and of the law of the land, which in his opinion were sufficient to enable even those Gentlemen who had not the advantage of a professional education, to pronounce on a subject of this land, with some degree of confidence, that they had at least a right to exercise their own judgment. He confessed he was very anxious to hear from the right hon. and learned Gentleman (Sir E; Sugden) who had just sat down, a distinct declaration whether he proposed for the future to place all the privileges, the most important and incontestable the House possessed, entirely at the mercy of the courts of law. Would the right hon. and learned Gentleman abide by the decision of the courts of law in all cases?—and would he tell them, to submit to the regular course of law, in any proceeding that might be brought against the House—in violation of the clearest and most indisputable privileges which the House possessed? For instance, suppose, that this action had been brought not against Hansard, but against the Speaker. In that case, if the judge who presided had given an opinion of the same kind as was given with respect to Hansard, if he had maintained that an action lay against the Speaker, and if he had in consequence been awarded damages against the Speaker, and if the sheriff of London or Middlesex had proceeded to levy execution in the official residence of the Speaker—on the goods and plate officially belonging to the Speaker—would the right hon. Gentleman tell 303 them that in such a case they would have no resource but to abide by the decision of the court of law? Would he ask for no other redress than what was offered by a writ of error, and proceeding before the House of Lords? Suppose a different case. Suppose that at the conclusion of a Session an action was brought against a Member, and that it was imputed to him that he had slandered some individual in a speech delivered in his place in Parliament, and if the judges held that there was good ground for such action, and if damages were awarded before Parliament met again, which was precisely the case at present, he would then ask whether the right hon. and learned Gentleman would tell the House that it had no power to vindicate its own proceedings—its own authority? The right hon. Gentleman might tell them that the case he was now supposing was impossible—that a court of law would never proceed to violate a clear and known privilege of the House of Commons. It was not likely, with the present judges, that so palpable a violation of their privileges would take place. But they must look to what was possible in an extreme case, in the case of judges who would not scruple to violate their duty, and go beyond the constitution. The whole argument on the other side rested on the presumption that the House of Commons might be guilty of gross abuse, and might lay claim to privileges which it did not possess. The House of Commons, it was always supposed on the other side, might refuse to be restrained, by the acknowledged principles of the law and the constitution. If they assumed that such extreme cases might occur of abuse on the part of the House of Commons—if they argued on the monstrous supposition that the House of Commons might, as had been said, order a person for execution, and if they were called upon to consider what course should in such a case be adopted, they must equally consider what might happen not more on the monstrous and unlikely supposition that a court of justice would be guilty of a direct invasion of the privileges of the House. If they could go beyond their power, a court of justice might equally exceed its authority. In such a case as he had supposed, he was convinced that the right hon. and learned Gentleman would tell the House they were not bound to submit to the decision of a court of justice, that if their ancient and acknowledged privileges were so openly violated they must vindicate them by their own 304 authority. But by what means was the House of Commons to proceed in the vindication of its privileges, except by some such course as that which his noble Friend had proposed in the present instance? Unless, therefore, they were prepared to admit that no violation of their privileges, however manifest by a court of law, would justify the resistance of the House. Unless it were in future to be received as a principle, that the courts of law were supreme in all questions of this description, and that the House of Commons must abide by their decisions on its privileges, no matter how erroneous these decisions might be. Unless they were prepared for this, the real question to be discussed was—Did they really possess the privilege or not; because, if they did possess it—if they really had a right to publish those papers that were necessary for the public service—he said they were bound to maintain that right, to maintain it without trusting to the decision of any other authority whatever, otherwise they were abandoning those sacred rights and powers which had been handed down to them from those by whom they had been preceded, and which they ought to transmit unimpaired to those who were to follow, for the security and protection of the people whom they represented. They were bound to do this, and therefore they were driven to the decision of the question, whether or not the House really did possess that right to publish papers which had been claimed for it. He must confess, that it had struck him very forcibly, that all through the speeches which had been made on the various nights on which the subject had been discussed, not one of the learned Gentlemen on the other side had ventured to come forward and express a clear and explicit opinion in favour of the judgment which the Court of Queen's Bench had delivered. The right hon. and learned Gentleman who had just sat down, had most distinctly avoided doing so. His colleague, the hon. and learned Member for Ripon (Mr. Pemberton), had equally avoided pronouncing upon the judgment of the court. The hon. and learned Member for Ipswich (Mr. Kelly) actually had gone so far as to say that he would not then give an opinion whether a publication of the kind brought before the court in the case of Stockdale v. Hansard could be a libel or not. If he had misunderstood the hon. and learned Gentleman, he would lay no stress on the point. Certainly the hon. and learned Gentleman bad expressed, very great doubt whether 305 on merely ordinary principles of law, a publication by that House could be held to be a malicious libel. But the hon. and learned Member for Ipswich said, they had no right by resolutions to make that law which was not law, or to claim a power of publishing what was not legal. They only claimed a power of declaring by resolutions what already existed. The publication by order of that House was a privileged publication, and afforded no ground for any legal proceeding. His noble Friend the Member for Cornwall (Lord Elliot), in seconding the motion, had rested the argument almost entirely on the inutility of possessing the power. It did appear to him that the question of the necessity of the power was that, after all, on which the whole argument must turn; because it was a power indispensable to the performance of their proper functions; it was admitted on all hands that the House must possess it, and he, for one, was prepared to contend on this ground that they had the right of publication. His noble Friend said, that there was no advantage, at all events, in those publications which criminated other persons. He must confess that he was greatly astonished to hear that statement from his noble Friend. It appeared to him that if this was carefully considered it would be found not only that it was necessary for them to have the power of publishing papers of criminatory character, but further that those particular papers which it was the most necessary and the most important to publish, were necessarily and unavoidably of a character to afford ground for legal proceedings, if not protected by privilege of Parliament. There was one case, and only one, in illustration of this point, to which he would call their attention. In the year 1790 and 1791, there was an inquiry before a Committee of the whole House on the nature of the slave trade. At the bar of that House Mr. Wilberforce brought forward a great variety of cases to show the extreme iniquity of that trade. Every page of the evidence given before that committee contains statements which would have afforded ample grounds for legal proceedings if not protected by privilege. There was one case—a monstrous and horrible story, which was of that kind, that no one who heard it could forget it—a case of the master of a slaver, who was proved to have treated one of his crew with a diabolical cruelty which ended at last in death. It was proved that he had treated 306 him, while labouring under disease brought on by a pestilential climate, as a skulker from his duty—that he had tied him up until he was at the point of expiring—and that, after protracted torture, the victim died in consequence of ill treatment. Could it he doubted for a moment that the publication of these facts if not protected by privilege would have been a libel. Even if the statement were proved entirely true, the law of libel would regard truth as no reason why a criminal indictment might not have been brought against those who circulated a paper containing such statements. It would be, in the eyes of the law, a libel of the grossest kind. But would the object, for which that evidence, was obtained, be answered, if, according to the declaration of the Lord Chief Justice and the other judges, Mr. Wilberforce had been compelled, when he had procured the evidence, to keep it strictly in his own possession, and perhaps, during the interval between the dissolution of one Parliament, and the return of another, in order to protect himself from the possibility of prosecution to have destroyed it? Let it be remembered for what purpose that evidence was obtained. Fifty years before the time that that evidence was brought before the House, the slave-trade was not only not condemned, but it was regarded as a great object of national policy to increase that trade to the utmost possible extent. The policy of the nation in dealing with foreign countries was not, as now, to put an end to that inhuman and detestable traffic, but to secure to the country the largest proportion of the advantages to be derived from it. How had that bloody trade been got rid of? How had the state of public opinion respecting it which now existed, been produced? How had we been relieved from the sin and crime of allowing that detestable traffic to continue? That great improvement and amelioration in our national character—the relief of the national character from so great a disgrace as the countenance of the slave trade, was entirely to be attributed to the pains with which Mr. Wilberforce and others had enlightened the public mind as to the true nature of that trade. How could they have done so if they were obliged to lock up in their closets the information which they had obtained, and been prohibited from communicating it to others? It was quite obvious that the most powerful weapons in that great struggle would have been entirely wrested from them, and another quarter of a century 307 would have elapsed before the slave-trade was abolished. What was true of the slave-trade was true of every other great and crying abuse. It was the very nature of great abuses that great numbers of powerful and wealthy individuals were interested in maintaining them. Against the opposition of such persons there was no means so accordant with the nature of a free constitution as acting upon the representatives of the people through their constituents. If, therefore, information directly bearing on the character of individuals, frequently containing matter of which there might be great reason to complain, could not be given to the public, it was impossible that a representative constitution could work to advantage. This was not all. Not only was it necessary to satisfy the people of the necessity of improvements in the law, before these improvements could be accomplished but also it was indispensably necessary that, whether the law was just or unjust, and was stated to be wrong or ill administered by parties in authority, there should be the means of investigating these complaints. They all knew how much feeling had existed in this country on the subject of the Poor-laws. He asked whether satisfaction could have been given to the country if the results of the evidence taken before the committee of that House, which for two successive Sessions conducted a laborious inquiry into the administration of the poor-laws, had been refused to the public. In that evidence he had no hesitation in stating that in his opinion there were charges of a very odious kind falsely brought against those employed in the administration of the law. Mr. Walter then the Member for Berkshire, and the hon. Member for Oldham, who took very different views of the effects of those laws, from those which he took, had brought forward numberless cases imputing abuses and culpable conduct in various parts of their administration of the law. In his opinion the charges were severally disproved, but it was most important that the whole case should be published, and there would have been great reason to complain if, instead of defending themselves from these charges, the parties concerned in the administration of the law had stifled the accusation by proceeding, as in the case of Hansard, against some one, for the publication of the charges. He felt there was so much to be said on the point of allowing the necessity of exercising this power to enable them to discharge their functions as a representa- 308 tive assembly, that he could hardly trust himself to go further into a topic which would be really endless. He would appeal to the judges themselves to prove that the necessary discharge of their functions as a House of Commons involved the possession of that power. Mr. Justice Littledale quoted, with entire approbation, an expression of Lord Ellenborough, which which was decisive of the point. Lord Ellenborough said, "Undoubtedly, if there were no precedents of recognised practice, such a body as the House of Commons must, a priori, be armed with competent authority to enforce the free and independent exercise of its functions, whatever those functions may be." This was the opinion of Lord Ellenborough, to which Mr. Justice Littledale, even in the late judgment, gave his unqualified adherence. Lord Denman, also made an admission to the effect, that the necessity of a privilege formed a ground for its existence. It was impossible to conceive how, on the statements of the judges themselves, there could be any possible doubt that the House enjoyed the right it contended for. Nor was the argument grounded merely on the necessity of the case. There was a strong argument also to his mind in the fact, that for 200 years they had never ceased to exercise without dispute or question, with one single exception, the right for which they now contended. From the year 1641 up to the time when the late action commenced, they had never ceased to exercise the right without question, except in the instance, frequently mentioned, of Dangerfield's narrative. The hon. and learned Member for Ipswich had said that this argument of usage was very much invalidated, because it began in the year 1641, which, he said, was a suspicious period in their history. He thought, however, that it would have been but candid in that hon. and learned Gentleman, when he used this argument, to have mentioned to the House, that the committee by which the subject was investigated had already pointed out that it was indeed true as was stated by the hon. and learned Gentleman, that the practice of publication originated at a suspicious period, because it was a time when the House of Commons claimed powers which it had no right to, but that this circumstance, when coupled with what afterwards occurred, only served to strengthen the presumption in favour of the privilege. It 309 was to be remembered that, at the restoration, the various unconstitutional powers which in the preceding period had been usurped by the House of Commons, were abandoned, and that in consequence of the previous usurpations of the House of Commons, there was then a disposition to go, perhaps, too far the other way, and to press too closely upon the rights of this branch of the Legislature. Yet on the return of Charles the Second, when, in consequence of recent abuse, there was so strong a disposition to scrutinize the powers claimed by the House of Commons, and to bring them back within their constitutional limits, this right of publication was continued in existence, and it was continued too, without being questioned. The practice had been continued up to the Revolution, and from the Revolution up to the present period never had the House of Commons for a single year ceased to exercise its privilege of printing and publishing such papers as it thought necessary. The hon. and learned Member, following the learned judges, said that the argument of usage was of much less weight, because, it might be fairly supposed that Parliament in former times was more cautious than it is at present in exercising its power of publication. It was said, too, that the absence of all attempts to question the right of publication by the House might be accounted for by the fear which the parties aggrieved might naturally entertain of proceeding against so powerful a body as the House of Commons; that it was probable none had been attacked but powerless individuals, or persons, who, being sensible of the truth of what was published to their disadvantage, must have felt that the institution of legal proceedings would only have increased the evil. That was the argument of the Chief Justice, and that, too, was the argument upon which the hon. and learned Member rested. Now, he might admit that the argument would be of some force if it rested upon any fact whatever. But the hon. and learned Member forgot that his argument rested upon an unsupported assumption;—not only was it unsupported, but it was directly contrary to the recorded facts of history. It was not true that the House of Commons had been more cautious in their publications formerly than in the present day. It was the very contrary. He need hardly say that if at the beginning of the last century party spirit did 310 not run higher than it did at present, at all events, it was manifested by proceedings of a more violent description, because the manners of the age were more violent—there was less check upon the passions of men, and they gave themselves greater latitude in the expression of their feelings. Hence it happened, that the papers printed by the House in those days, instead of affording less, afforded much more ground of complaint than those of the present times; as an instance, he would mention the resolutions and counter-resolutions of the Houses of Commons and Lords during the disputes which sometimes occured between them; they would find the House of Lords declaring that the Commons infringed upon the rights and liberties of the people, and the House of Commons passing offensive resolutions against the House of Lords, and both parties betaking themselves to publication. He alluded particularly to the year 1701, when both Houses carried on a war, not only by printing, but by the direct publication of their resolutions. He could not avoid noticing here the extraordinary error which bad been fallen into by the right hon. and learned Member for Ripon, in declaring that the publication of their papers by sale was a new power claimed by the House of Commons. There could not be a more unfounded assertion; in point of fact, it was not a very long period since the House of Commons not merely was in the constant practice of causing its papers to be sold, but this sale actually defrayed the expenses of printing its papers and further afforded a profit which was received by the Speaker. If they looked to the important parliamentary papers up nearly to the time of the American war, they would find that they were almost invariably published by order of the House of Commons, and, according to the present practice, the price at which they were to be sold was usually printed on the title page. That practice was discontinued chiefly because papers that were very voluminous began to be published, and the sums received from their sale ceased to cover the expenses. One of the predecessors of the Speaker, finding it a losing account, transferred it to the treasury, from that period to the present the expenses of printing were defrayed by a vote of the House of Commons, like other branches of the public service, and for a considerable time (that is for about sixty years), the sale of 311 reports and miscellaneous papers was discontinued; but it appeared by the report of their committee, that so far as regards the votes of the House and the supplement to the votes, the publishing by sale had never been discontinued; these have been regularly printed and sold by order of the House, without any interruption of the practice It was true, then, that it had long been the practice to publish papers, though some of those papers were of a criminatory tendency. Was it true, then, that an acquiescence in these publications was produced by the conscious guilt or weakness of those who were criminated by these publications? It was far otherwise. In the case that he had already mentioned, and which he had referred to—of the slave trade—in that inquiry had been mentioned the particulars of the ill-treatment said to have been inflicted upon a seaman on board of a slave ship, by the captain. Now, so far from the truth of this charge having been admitted, the person against whom it was made, a man named Clement Noble, was brought to the bar for the purpose of disproving the facts alleged against him. This was done in the course of the examination as to the effects of the slave trade. It was not to be said that in that case those interested in the publication were powerless individuals. It was well known to every Gentleman acquainted with the history of the discussions on the slave trade, that the advocates for that trade were supported by a numerous, rich, and powerful body; so powerful, that for many years they overruled in that House, and in the other, the dictates of justice and humanity. Did they think that that powerful party would have been afraid to attack Mr. Wilberforce? Did they suppose that the same party would not have sought to overwhelm him by expenses, or to bring actions at law, and to have prosecuted if they had thought they could have done so with success, all who assisted to disseminate papers containing statements so injurious to their interests? Did they suppose that that great party if they thought they had the right to bring actions, would not have brought them, when the fact was, as they would find, that large numbers of the copies of the evidence on the slave trade were disseminated? Did they think that when things that were so fatal to their cause were promulgated by means of these publications, 312 that the parties so injured would have failed to adopt these means for defending themselves instead of merely attempting to counteract the impression produced by the evidence against them by evidence on the other side? He thought that it was impossible to suppose so for one moment. If, then, they looked a little further back, they would see cases of a stronger and clearer nature, which must prove that there was a general acquiescence of all parties in the publication of papers of a criminatory nature by the House, and that the House was not to be accountable for them in the manner supposed by the hon. and learned Member. In 1722 a formal complaint was made to the House of Lords, that in a report of a committee of this House was to be found the evidence of a witness charging Lords Kinnoul and Strafford of being aware of a contemplated invasion of this country by the Pretender. A committee had been appointed by this House to examine into the particulars of a treasonable plot which had been discovered and in the report of this committee it was mentioned that it had been stated by one of the witnesses that he had been informed that Lords Kinnoul and Strafford had had a guilty knowledge of the intended invasion of the country by the Pretender. What was the course taken by Lords Kinnoul and Strafford? They did not move that the printers who printed and published this charge against them should be proceeded against. All that they did was, to ask that the witness who had given the evidence of which they complained before the House of Commons should be brought to the bar of the House of Lords, and there examined, in order to discover if there was really any ground for the charge brought against them. They only asked for the opportunity of disproving the charge by a cross-examination of the witness on whose evidence it rested. Now, if the House considered the manner in which the press was treated at that time, it was not at all likely that the parties injured would have adopted that course, and would not have called for the immediate punishment of the publisher of the report, if they had not thought that papers so printed were protected by the privileges of Parliament. It may indeed be said that the House of Lords might not wish to get into a quarrel with this House by proceedings against its printer and might have been induced to forego a 313 course which it would otherwise have adopted. But no such motive could have weighed with the accused lords, or the friends who supported them; they did complain strongly of the conduct of the House of Commons, and were obviously prepared to insist upon any means by which they thought they could obtain redress, and yet they proposed no more than that the witness should be called to the bar. Upon that proposition a long argument took place, which was at last overruled; and, against that decision of the House of Lords, twenty-four peers signed a protest, as being conduct unjust to Lord Kinnoul and Lord Strafford, thus showing that the persons aggrieved were far indeed from being weak and powerless, and therefore likely not to acquiesce tamely in an injustice being done to them, hence it becomes most material to observe, how very differently the House of Lords proceeded upon the same statement before complained of was referred in a publication which was not protected by the privileges of the House. A printer of a newspaper copied the statement from the report of the Committee of the House of Commons; for this they called the printer to their bar—he absconded; he forwarded a petition, begging, in the most humble manner, that he might be excused, and alleging that his family would be ruined by compelling him to remain absent from his business; and the House of Lords rejected his petition. Another newspaper acted in a similar manner. The House of Lords proceeded against the publishers. They saved themselves by giving up the writer; and then, for the mere offence of copying the statement from the Commons' privileged papers, the House of Lords committed him for one month to the custody of the Black Rod, from which he was not discharged except upon payment of his fees. Such was the proceeding of the Lords with respect to unprivileged papers; and yet the original statement, upon which such proceedings were founded, was contained in a report not merely printed for that House, but printed and published the title-page of the original report, which was still to be seen in the British Museum (for he had himself referred to it), bearing the words "Published by order of the House of Commons." This showed, that the privilege vested in the House of Commons, of printing and publishing this evidence was 314 clearly regarded by all parties in the House of Lords at that time, as not liable to question, for even the accused Peers, while they complained of the statement, did not even propose to proceed against the publisher of the paper. A strong minority of twenty-four joined in the protest against the non-examination of the witness; they respected the publication sanctioned by the Commons, but the moment the statement thus respected appeared in the newspapers, and these being papers, too, which might be supposed favourable to those in power, yet not being privileged, the House at once assented as a matter of course to the infliction of the summary and severe punishment which he had already mentioned, thus even what the aggrieved did not think of asking, as against the printer of the House of Commons, was yielded without a struggle by the majority against an unprivileged printer, as redress too obviously reasonable to be refused even to political opponents. The question then came to this: They had asserted, on the clearest ground, the undisputed exercise of this power for two hundred years; they claimed the right of publishing that which they thought it was important to give to the world, and yet the Court of Queen's Bench, notwithstanding the strong grounds on which they rested their claims, were setting them aside almost with contempt, and gave judgment against their officer, and granted damages against him. They were now called upon to submit to this decision. He asked them, if they did so, could they maintain their own authority, or any one privilege that they possessed? Could they maintain the right of freedom of speech in Parliament? Could they maintain any one or other of their privileges, except with the concurrence of the courts of law, if they yielded in this instance? With respect to the freedom of speech, he could well conceive, that stronger arguments could be used for maintaining an action of slander than for supporting the action of "Stockdale v. Hansard." It might, in such a case, be said, "it was true, that many decisions established the right of a Member to liberty of speech against the Crown, but that the case of a private injury by slander had never been brought before the court." It might be urged in the very words used by Lord Denman, and repeated by the hon. and learned Member, "one subject has no right to do wrong against another subject, 315 and if redress is asked from us, we are bound to give it." Such an answer Lord Denman, it was said, was bound by his oath to give; but would not the answer be the same if an action were brought for a speech made in that House? Much more injury would be done by slander spoken than by a printed libel, for the slander spoken was not only heard in that House, but circulated throughout the civilized world, whereas the publication might be an obscure passage in a large blue volume, that very few persons might chance to see. It seemed, then, to him, that the argument in an action for slander would be still stronger than for that which was founded upon a publication authorised by themselves. If they, then, found themselves in the situation that an action for slander was brought, and that it was carried to the point in which they found the present action, would or would not the House be bound to interfere to protect its Members from the consequences of any such action? He said, undoubtedly, that it would. In former limes, the courts of law were against that House. Both the courts of law and the Crown were opposed to it, and it had to contend against them. And yet, against the Crown and the courts of law that House did maintain its privileges, and transmitted such privileges uninjured to them. Should they, then, depart from their privileges? Should they be influenced by considerations to which their predecessors had never listened? Should they take a course by which they might impair that sacred trust, and which they were bound to give to their successors as unimpaired as they now possessed it? It was said, that this was an unjust proceeding to the sheriffs—that the House ought not to attempt to compel them to repay the money to Mr. Hansard. The right hon. and learned Gentleman who had just sat down told them, that if they did take that course, in requiring the sheriffs, to repay Mr. Hansard, that the sheriffs would be compelled by the Court of Queen's Bench to pay Mr. Stockdale likewise, and that they then would come before them as petitioners, and the House would be bound to reimburse them. He told the right hon. Gentleman, that even if the sheriffs were to repay Mr. Hansard, they would not the less be guilty of a breach of the privileges of the House; if they were to pay over to Stockdale the damages awarded to him, but that if, on the other hand, they 316 refused so to pay on the order of the court, he was fully convinced it was in the power of the House to protect them. The hon. and learned Attorney-general had quoted the case of the warden of the Fleet, which had been before referred to by one no longer a Member of that House, but whom he shortly hoped they would have the advantage of again seeing amongst them—the Warden of the Fleet, who had represented that by enlarging a prisoner he would lose a considerable sum of money, and yet the House of Commons would listen to no excuse, and the prisoner was enlarged. The consequence was, that the courts did not proceed against the Warden of the Fleet. In another case the opinion of Lord Ellenborough was to be referred to, for he deemed, that there was a sufficient excuse for the sheriff in not levying a distress, because it would be deemed a contempt by the Board of Green Cloth. Should it then be said, that it was a sufficient excuse for an officer, that he might incur the displeasure of the Board of Green Cloth, and yet that it would not be an excuse for him, if he incurred the displeasure of the House of Commons? This was a doctrine which he listened to with extreme amazement. He therefore really did not see, that there was any other course to be adopted by them, than that which was proposed by his noble Friend. If they took that recommended by the hon. Member for Ripon, it was possible, that they might maintain the right of publication. It was possible, that they might preserve that particular privilege, because he confessed, that, on the case being well considered, the learned judges, in spite of the decision they had come to, would at length come to the opinion, that a publication by order of the House could not, in the eye of the law, be a libel. There was no malice to make it a libel. ["Hear, hear!" from Mr. Creswell.] He perceived, that the hon. Member for Liverpool cheered that statement; in doing so he seemed to forget, that it was one of the arguments expressly put forward by the Attorney-general, and which had been expressly overruled by the Chief Justice in his judgment. The hon. and learned Gentleman agreed with them, that holding the publication by order of the House to be a malicious libel was a manifest error. This proved how dangerous it would be, to submit the question of their privileges to the courts of law; for, the 317 Court of Queen's Bench being wrong in one instance of such vital importance to them in the exercise of their duties, showed how dangerous it would be to trust their privileges or authority to the determination and decision of courts of law. The whole debate abounded with examples of the extreme uncertainty of the decisions of the courts. If there was any point more frequently referred to throughout the debate it was this, that if the House chose to commit a person, whether properly or improperly, for a breach of privilege, there was no redress to be obtained. That was the doctrine laid down by the hon. and learned Member for Liverpool (Mr. Cress-well), and by both the hon. and learned Members for Ripon, but up got the hon. and learned Member for Ipswich (Mr. Kelly) and said, that he disapproved of the course recommended by his noble Friend (Lord J. Russell), because if they did not discharge Stockdale, every day he was in confinement would give him an additional claim for damages for false imprisonment. Stockdale was committed for contempt, and, by the unanimous opinion of all the other Members of the House, that a commitment for contempt could not be removed, yet the hon. and learned Member for Ipswich said, that Stockdale could bring an action, and that large damages would be given. The hon. and learned Member for Ipswich, might be a judge some day—no doubt his talents and acquirements well qualified him for that station—but if the hon. and learned Member should be raised to the bench, it was clear, that the invasion of their privileges would go farther. The hon. and learned Member held, that a commitment for contempt could not be sustained. That was another proof of the extreme uncertainty of the law, and of the peril to which they would be exposed, if they entrusted their privileges to the decision of the courts of law. He called upon the House to decide, whether this privilege was one really and necessarily belonging to them or not. If they thought it necessary, let them boldly and unhesitatingly claim it, in the manner in which their ancestors maintained their privileges. Let them not shrink from pursuing the same course, and he was convinced that, if there was no hesitation on their part, if they insisted boldly and decidedly on the point on the present occasion, they would succeed in 318 establishing the right for which they were contending, but if they gave way—if they now faltered, if they flinched from the opinion they had voluntarily recorded, there would be an end not only to the particular privilege they now claimed, but to all security, for even the most essential and indispensable of the powers and authorities they claimed as a separate branch of the Legislature.
§ Mr. Kelly
said in explanation, the noble Lord had misunderstood him. The noble Lord seemed to suppose, that he (Mr. Kelly) had advanced an opinion that commitment for contempt was not within the power and privilege of the House. He begged to state, that he never advanced such an opinion. He stated, on the contrary, more than once, and he repeated it, that the House had undoubted power to commit for contempt, and no court of law that he was aware of ever yet questioned that power. What he did state, and it doubtless led to the misunderstanding, was this, that in the particular case of Stockdale, whom they had committed, if an action were brought by Stockdale, and pursuant to the resolution moved, that House were to order the Attorney-general to set up privilege as a defence, it would be a good and complete defence, but if they persevered in the course now proposed of committing a person for daring to bring any action whatever, there would then be no ground of defence, and if they did not appear judgment would go by default, the court could take no notice of a privilege that was not pleaded, and he then said, that Stockdale, although lawfully committed, could still recover damages.
§ Lord Elliot
begged also to say a word in explanation. What he said was, that where a proper discretion was used, it was seldom necessary to publish matters criminatory of any individual, and that where they did publish such criminatory matter, it would be a crying injustice to refuse a person the means of vindicating his own character, and that, therefore, if they closed the courts of justice, it was imperative upon them to give access to the bar of the House.
§ Sir R. Inglis
said, that the noble Lord (Lord Howick) had expressed surprise that no one on either side of the House had signified approval of the judgment of the Court of Queen's Bench. He was one 319 of those who approved of that judgment. The question, however, was not whether that judgment was right or wrong, but whether the Court of Queen's Bench had competent jurisdiction to decide at all. He had already endeavoured to dissuade the House from the career they were entering upon, and he had stated the consequences to which it might lead. He wished to ask the noble Lord, the Secretary for the Colonies, whether he were prepared, step by step, to follow up the consequences of the resolutions he had proposed? He apprehended, that it was a possible alternative, that the sheriffs might refuse obedience to the orders of the House, and in that refusal they might be supported by the Court of Queen's Bench. The Lord Chief Justice of the Queen's Bench, the Chief Coroner of England, might call upon the sheriff of the county of Middlesex to protect the administration of justice. What would follow? Was the sergeant-at-arms to go and attempt to seize the judges upon the bench? Did he understand the noble Lord to assent to that? [Lord J. Russell: I neither assent nor dissent.] This must take place if the House followed up its resolution. He took it for granted, that the noble Lord and the hon. Members opposite would not follow the sergeant-at-arms. But would the judges be indifferent meanwhile? Might they not call upon the sheriff to call out the posse comitatus? He asked the noble Lord, whether he was prepared for a contest in the streets of London between the military authorities, which a colleague of the noble Lord's might, perhaps, place at his disposal in aid of the sergeant-at-arms, and the civil power? He warned the noble Lord of the necessity of pausing in his career. To advance further would be dangerous to the authority and influence of the House of Commons, and destructive to the constitution of the empire. If the case assumed by his right hon. Friend, the Member for Ripon (Sir E. Sugden), that the sheriffs should pay back the money to Messrs. Hansard, and pay it to Stockdale also, were to take place, the consequence would be, that the House would levy on the sheriffs a fine of 600l., and that for the discharge of the duties which they are sworn to perform. The learned Attorney-general, in a very long speech, had the other night laboured to assimilate the 320 case to that of an order or injnnction of the Court of Chancery, and argued, that because the judges were bound to obey an injunction, they were equally bound to defer to an order signed by the clerk at the table. But, as was stated on Saturday, the orders of the Court of Chancery are issued under the authority of the Crown, just as those of the Queen's Bench are, and this was the true distinction between the cases. For what was the order of the House of Commons? It was that which emanated from a majority of the Members of the House, and if it was good when the majority was, as on Friday last, 149, it was equally good when it was carried by a majority of two or of one. The question was not whether the order expressed the judgment and good sense of the great body of the House, and carried with it a corresponding authority, but whether it was carried by a majority at all; for, if carried by a majority of one, it was carried by a legal majority, and was binding to all intents. But would any one say, that such an order would carry equal weight in the country with the orders of the courts of law? The noble Lord said, that it was the duty of the House to enlighten the public mind by means of these publications; but he would say, that it was first necessary to enlighten their own minds. He thought very few hon. Members were in the habit of reading the publications of the House—exceediug few Gentlemen, he believed, ever read one of the fifty blue volumes. Yes, what he complained of was, that very few Members read those books before they sent them out. The fact was, that every single volume ought to be read by the House before it was laid on the table previous to being sent out. Then, again, in what way were these reports and volumes of evidence and other publications framed? Who was aware of their contents? He hardly thought, that the noble Lord, (he Secretary for the Colonies, had read the volume which formed the subject of the late action; he was quite sure, that the majority of these volumes were never read by the majority of hon. Members before they were laid on the table. Again, he asked, in what way were they framed? In what way was the evidence published by the charity commissioners collected? Was the noble Lord aware of this? If he was he would 321 ask the noble Lord, whether that was the kind of evidence which ought to circulate through the country with legalized and privileged impunity, and without the possibility of being questioned? Let the House remember what were the instructions given for the direction of these com missioners in a speech made by a noble and learned Lord at a time when he was only an hon. and learned Gentleman. He had said, that the commissioners ought to be easy of approach, never closing their ears to abuse, because from abuse sometimes an idea of the truth might be formed, not even rejecting the aid of informers who might withhold their names, and not even despising anonymous information. Were the House of Commons to circulate such evidence, collected on such a plan, not merely post free, but even judgment free, through the country, without allowing even the hope of redress to those it might injure, whoever they might be? In short, he felt, that not merely regarding the political dangers which were likely to arise from such a course, dangers which could hardly be overrated in the present state of the country, and which must needs follow from lowering and weakening the authority of the courts of law at a period when the maintenance of that authority was most essential to the welfare of the country. Not looking merely to these probable dangers, but looking to the probability of a collision between the House of Commons and the courts of justice, he asked the House to pause before they resumed the exercise of this power, and reflect well on the course they were pursuing. He asked whether, in the possible event of the sheriffs not paying over the 600l., the House of Commons was prepared first to commit them, and then the judges of the land? Did they think, that in such an event the judges would not be attended in triumph to prison by hundreds of the gentry and thousands of the mass of their fellow-countrymen? In saying this he did not appeal to the fears, but to the coldest and calmest reason of the House, and he said, that if the parties who were then in attendance should refuse obedience to the mandates of the House, and be supported in that refusal by the courts of law, whose sworn servants they were, a collision between the House and those courts must occur and and then an appeal to physical force. If that were the course which the 322 noble Lord was prepared to adopt, he (Sir R. Inglis) could not but wish the noble Lord joy of his courage, while he condoled with him on his want of discretion.
§ Sir Robert Peel
said, he thought it would be conceded to him, that if he adhered to the opinions heretofore given by him, or rather if he persisted in the course which, up to that hour, the House of Commons had taken, he could have no motive whatever but a conscientious one. There was no particular claim upon him, on the part of the present House of Commons, if he looked to the mere merits of the existing-institution, that should induce him to come forward in its defence. That House had reposed no confidence in him, and it therefore had no claim upon him, except that which was imposed by a conscientious sense of duty. If mere party considerations could influence him, he would have ranged himself with those with whom he had uniformly acted, rather than with a party with whom he had a temporary but very short agreement, and whom he should, with perfect cordiality, in the very next week, vote to be utterly unworthy of his and the public confidence. He said, therefore, that if he did deviate from the course which the majority of his hon. Friends were inclined to take, it could be from nothing but a sense of that duty which he owed to his country. He would not say, indeed, that there was any deviation on his part: on the contrary, he considered that it was an adherence to the principles of those with whom he uniformly acted. Last session a case exactly parallel occurred—the memorable case of Polack. When Polack gave notice that he meant to bring an action against Mr. Hansard, the House resolved, by the greatest majority he ever remembered in this House—a majority of 120 to four—that Mr. Hansard should not plead. Yet the House considered Polack guilty of a breach of privilege. Therefore he was acting, not only in conformity with his own opinion, but likewise in conformity with what he had a right to presume was the almost unanimous opinion of the House of Commons. He would state to the House the grounds upon which he had arrived at his opinion, and with the utmost admiration for the ingenuity of the arguments which which had been brought forward in this this debate, in order to show the difficulties with which they were surrounded, and the 323 imperfection of their powers, yet let him be permitted to say, that throughout the whole of that exhibition of ingenuity, he had not met with one practical position. Now he would endeavour to state what the position of the House was, and what were its powers. They should hear from him nothing of technicalities. He would, in the plainest and simplest manner, in the plainest and simplest terms, for the sake of giving them every advantage and defence against sophistry, state the grounds of the opinion he had come to. He invited them to consider—to minutely examine that opinion, and the grounds upon which he had formed it; and, if by practical arguments they could remove his doubts, and effect his conviction, they should have his vote. Sir (continued the right hon. Baronet), I maintain, in the first instance this position—that whatever privilege is necessary for the proper and effectual discharge of the functions of the House of Commons, that privilege the House of Commons possesses. That is my hypothesis—my hypothetical position that if a privilege be absolutely necessary for the proper performance of the duties of the House of Commons, of that privilege the House is possessed. My second position, Sir, is this—and it is in strict logical sequence—that this particular privilege of free publication, not liable to be questioned in any court of law, is absolutely necessary. That is my second position. My third position is this: We have no security for the proper and effectual exercise of that special privilege, unless we are enabled by our own declared power to vindicate it. Sir, I rejoice that au opportunity has been afforded for most maturely considering this question—I rejoice for the sake of proving that we are not influenced by factious motives—that we are sincerely desirous of opportunity for mature reflection, that this interval has been suffered to elapse. Sir, I have spent that interval, not in endeavouring to fortify and confirm my previous opinion by reading over the authorities of those who have struggled on behalf of the privileges of the House of Commons; but I have passed it reading over those eminent judicial authorities which are in favour of the opposite position—I mean the judgments of those learned persons who decided the case in the Court of Queen's Bench; and, Sir, I must say, that I have retired from the careful perusal of those important docu- 324 ments with the full and perfect conviction that the powers and authorities claimed by the judges are inconsistent with the privileges of this House; and that the judgment they came to is at variance with their own principle. I refer you to my Lord Denman's judgment itself for proof of that assertion; for he admits most clearly and distinctly the position for which I contend—that, if this privilege be necessary for the proper performance of our functions, then we possess it. Lord Denman says,That Parliament enjoys privileges of the most important character, no person capable of the least reflection can doubt for a moment. Some are common to both Houses, some peculiar to each; all are essential to the discharge of their functions. If they were not the fruit of deliberation in Aula Regia, they rest on the stronger ground of a necessity, which became apparent, at least as soon as the two Houses took their present position in the State.He says further,The Commons of England are not invested with more of power and dignity by their legislative character, than by that which they bear as the grand inquest of the nation. All the privileges that can be required for the energetic discharge of the duties inherent in that high trust, are conceded without a murmur or a doubt. We freely admit them in all their extent and variety.He likewise says—The proof of this privilege was grounded on three principles; necessity, practice, universal acquiescence. If the necessity can be made out, no more need be said; it is the foundation of every privilege of Parliament, and justifies all that it requires.Now, therefore, he (Sir Robert Peel) anticipated no answer to his first position, because he had the distinct admission of that which he must consider as a hostile and disinterested authority, that if the privilege be necessary, that House possessed it. He agreed with Lord Denman that they could prove no prescription. But Lord Denman himself had admitted that on the very same ground on which they claimed this privilege of free publication, rested also the privilege even of freedom of debate. He therefore said, that free discussion within those walls rested upon the acknowledged necessity of such a privilege, and upon nothing else. He was not certain that if they were compelled to abandon the privilege of free publication, they had any security for the continuance 325 of the privilege of free debate. Lord Denman also had said, that the privilege of free debate had been denied when Members began to speak their minds. Lord Denman says,Thus the privilege of having their debates unquestioned, though denied when the Members began to speak their minds in the time of Queen Elizabeth, and punished in its exercise both by that Princess and her two successors, was soon clearly perceived to be indispensable, and universally acknowledged.Then he had no prescription to plead in favour of free debate—Queen Elizabeth had denied it, James had denied it, Charles had denied it—but the privilege of publication rested upon the same indisputable ground of necessity, acknowledged by the judges to prove the existence of the privilege of free speaking. Now there was no power possessed by the Court of Queen's Bench in this respect, that was not also possessed by every manor court, and borough court, and hundred court; therefore it followed that that privilege of free publication, if they were not able to maintain it themselves, was liable to be questioned, not only by those high and eminent legal authorities, for whom he had unfeignedly the highest respect, and concerning whom not one expression of his should be inconsistent with the most perfect reverence. His object was to show, that the privilege of free discussion rested upon the same foundation as that of free publication—namely, acknowledged necessity. He wished to show also, that that privilege of free debate had been questioned, not only by sovereigns in the exercise of arbitrary and despotic powers, but also that the Court of King's Bench itself had in other times denied, not only the right of free publication, but also the right of free debate. He would prove that there was a time when the judges of the Court of King's Bench solemnly denied the House of Commons that privilege. The case occurred in the year 1628, when the Court of King's Bench, and the Court of Star Chamber both declared that they were perfectly competent to take cognizance, after the prorogation of Parliament, of speeches made by Members during its sitting, and they imposed fines of 2,000l. and 3,000l. on Members for speaking their sentiments of the Ministers of State. In the year 1640 the House of Commons, twelve years afterwards, protested against hat decision: and in the year 1657, the 326 Houses of Lords and Commons, not by law but by resolution, determined that the decision of the Court of King's Bench was illegal. The resolution of the Lords and Commons was, that the judgment given in the Court of King's Bench was an illegal judgment, and against the freedom and privilege of debate. They relied on an Act of Parliament which passed in the reign of Henry 8th, commonly called the "Act concerning Stroud;" but the judges said that was a private act of Parliament relating to Stroud alone, and refused to take cognizance of it, and decided that they were perfectly cognizable of the acts of Members charged with no other offence than speaking too freely in Parliament: therefore the privilege of freedom of debate did not rest on judicial authority. Charles I. also expressly denied the privilege to exist. On the point of the privilege being necessary, he might rely without further citation of authority. Then, was the privilege of free publication necessary? Was it necessary for what Lord Denman called the "energetic" discharge of their duties? What was the nature and character of their duties? What were the universal doctrines held with respect to them? Not that they were bound implicitly to obey the commands of their constituents; but what constitutional writer had ever doubted that there ought to be a general sympathy between the constituent body and the representative? Could they hope that in these times the mere unexplained votes which they gave would meet with unquestioned acquiescence? Was it not important that the public mind should be enlightened by their acts? What was the meaning of the right of petitioning? Was it meant, that they who should have that right should be utterly ignorant of what they petitioned about? Was it right that they should have imposed on them the obligation of petitions coming from vast bodies of men in utter ignorance of the main facts about which they petitioned? What great legislative act that had been passed by Parliament for the last 50 years had not been passed mainly from the influence of public opinion bearing upon the House of Commons? Take the abolition of slavery. Did they believe that slavery ever could have been abolished unless they had published to the world the evidence of the abuses and horrors of slavery? He would also ask this question, in connection with 327 another of their functions: would they have succeeded in persuading the people of England to pay twenty millions of money for the abolition of slavery, unless they had imbued the public mind with the deep and perfect conviction, that such were its abuses—such its unjustifiable character—that a moral stigma and degradation would attach to the nation unless it were put an end to? Could it be asserted as the shadow of an argument, that they had a right to impose a pecuniary burden of twenty millions, and yet be unable to say, "We will tell you the grounds and reasons for this imposition?" Would they answer him that? As it was, the twenty millions had been called for, and the people were convinced that, great as were the financial embarrassments of the nation, it was for the honour and glory of England that the sacrifice should be made. Could they have hoped that their call for this sum would have been willingly and cheerfully responded to and obeyed—that you would have carried with you public opinion, and made the impression you wished upon foreign nations—if the people had been allowed to believe, as it had been industriously striven that they should, that the condition of a slave in the West Indies was preferable to that of a labourer in England? The noble Lord the Member for Northumberland had referred to the slave trade, but he would cite a still stronger case than that instanced by the noble Lord, and he would then ask whether the slave trade would have been abolished if the public mind had not been correctly informed on the subject? Evidence was taken before the privy council on the subject, and was published to the world in 1788. In 1789, when Mr. Wilberforce brought forward the question, he had to struggle with the impression that had been produced by that evidence upon the public mind favourable to the system. He asked for a committee to remove the impression that the delegates had made. He would read to them the evidence which had been given, and the evidence which had been given to rebut it. Mr. Norris, one of the Liverpool delegates, had given this account of the middle passage:—The apartments of the slaves were fitted up for their accommodation as much as circumstances would allow. The right ancle of one was connected by a small manacle to the left of another; and, if they were turbulent, they were also confined by irons to their wrists. They had several meals a day, of all the luxuries that Africa provided, with African 328 sauces, and another meal of pulse: after breakfast they had water to wash themselves with, while their apartments were perfumed with frankincense and lime-juice. Before dinner they were amused, singing and dancing were promoted, and games of chance were furnished them.Mr. Wilberforce felt what would be the effect of these false statements of the facts of the case, and felt that until the impression made by these statements was removed, the continuance of the slave trade would be inevitable, for it would be supported by public opinion. He invoked the assistance of the House of Commons first to remove the film from the public mind by hearing counter-evidence; and in that counter-examination it appeared, that the meal of pulse, of which Mr. Norris spoke, was a meal of horse beans.'The song and the dance, said Mr. Norris, are promoted. Mr. Wilberforce said, it would have been more fair if he had explained in what way they were promoted. The truth was, that, for the sake of exercise, these miserable wretches, loaded with chains, and oppressed with disease, were forced to dance by the tenor of the lash, and sometimes by the actual use of it. 'I,' said one of the evidences, 'was employed to dance the men, while another danced the women.' What, then, was the meaning of the word 'promoted?' And it might be said with respect to the African sauces being provided, and all the delicacies of African luxury, that it was proved in evidence that an instrument was sometimes carried out in order to force the slaves to eat. That was evidence how much they enjoyed themselves. As to their singing, what should they say when told that their songs were those of lamentation on departing from their native land, and that while singing they were always in tears, so much so, that one of the captains threatened one woman with a flogging, because her song was too painful for his feelings?'Such was the counter evidence that had been produced; and could it be said, that every slave-captain whose cruelties had been denounced, would have had a right to take proceedings in every court of quarter sessions in the kingdom against the House of Commons? Then, again, with respect to abuses in India. Did the House believe, that Warren Hastings would have been impeached—that the abuses in that part of our possessions would have been controlled, had it not been for the publication of evidence? What would have been said if, when Mr. Dundas, before the memorable impeachment of Warren Hastings, brought his folio volumes before the House, and moved 329 for the appointment of the Indian committee, if the doctrine had been maintained: "No abuse relating to India must be brought forward, because every person concerned or implicated would have his right of bringing an action of libel, and that he had as much right of bringing his action against the printer of this House as against any other individual?" Again, did the House believe, with respect to the proceedings in the case of the Duke of York, that the people and the military would have acquiesced in the temporary suspension of a favourite commander-in-chief, and a Prince of the blood royal, if it had rested upon the mere declaration to them, "We petition for the removal of this illustrious individual, and yet we cannot tell you the reasons for our proceeding?" It appeared to him, that it would be a suspension of all their powers and functions as a legislative assembly, unless they were to retain this important and indispensable privilege. There was no one question of great public importance, which, as far as he recollected, had not been carried in the first instance by the free publication of the proceedings of Parliament. Free publication tended not merely to increase the facilities of effecting great democratic changes, but might often be absolutely necessary to enable those who were adverse to such changes being made precipitately, to gain that influence upon the public mind which was favourable to their views, and to be obtained only by the diffusion of correct information. Therefore upon the second point—that the privilege of free publication was necessary for the proper discharge of the functions belonging to the House of Commons—whether he looked simply to the act of legislation, or to the power of the House to inquire into the conduct of the trustees of official authority, or to the grant of immense sums of the public money for the purpose of wiping out a blot upon the national honour, he could not conceive how a legislative act of great importance could be passed—nor how the conduct of an official authority could be inquired into—nor how the public could be reconciled to the payment of enormous sums of money, unless the House were enabled, and enabled at its own discretion, to enlighten the public mind without the fear that its officers should be punished. He therefore came to the conclusion upon this second point, that the privilege of free discussion 330 was necessary for the "energetic discharge of their duties." He now came to the third point: Had they sufficient security for the proper exercise of that privilege and the continuance of it, unless they could vindicate it by their own laws? Here again he referred in the first instance, not to the opinions of the House upon the point, but to the opinion of the judges; and he found, that the judges admitted, that the House of Commons had the privilege of publishing for the use of its own friends. That privilege was conceded to them. He found too, that his hon. Friend who spoke last was disposed to contend for the existence of this amount of privilege. Let him ask, then, how was the House to maintain it? The judges admitted, that they had the privilege o publishing for the use of their own friends. On what security did that privilege stand? Supposing the judges questioned it? Should the House plead? If they pleaded and were over-ruled, were they to submit? If they did not submit, what should they do? When were they to interfere? When were they to assert their privilege? When were they to take steps to maintain it? Here was an acknowledgment of privilege to a certain extent: suppose it were questioned? Suppose it to be brought under the cognizance of one of the courts of law: the judge admitting the privilege to a certain extent might still impose a limit upon it: he might say, "Here is a publication which the House of Commons is privileged to print, but at the time that it was ordered to be printed, or during the time that the matter to which it relates was discussed, all the Members of the House were not present; many of them even were not in town; therefore I really do not see the necessity for printing 658 copies. I think, that the number of copies ordered to be printed ought to be restricted to the number of Members who actually attended." Suppose again, the judge or judges were to say, "It is very true, that the Scotch judges are in the habit of taking home a larger number of papers to consider at their leisure; we will concede to you, the Members of the House of Commons, who have been constant in your attendance, the same right; but we doubt the propriety of extending it to those Members who are absent from town." Supposing such a ground to be taken, what were the House of Commons to do? Should they acquiesce? 331 Should they say, "The law is supreme—privilege shall not be opposed to law." They might say that on precisely the same ground as that upon which they were now called upon to acquiesce in the amendment of the hon. and learned Gentleman. The question was whether the privilege of the House of Commons was a part of the law of the land. It was conceded that the privilege of the House was a part of the law; but then it was said, that the judges were the only interpreters of it. No resolution of the House, it was said, could contravene the law of the land. But he was assuming the case of a privilege which the House actually possessed being attacked by a court of justice, and in such a case he enquired, "How is the House to proceed to vindicate its privilege?" Should they acquiesce in the decision of the court of law; or, feeling the necessity of resistance, should they determine to oppose it. If they determined to resist, could they do so in any other mode than that which they had adopted in the present instance?" They first of all presumed that the court of law would be in their favour; therefore they pleaded; subsequently, finding that the court was adverse to them, they determined in the second instance not to plead. Discovering in the end that the court was still against them, the question was whether they were tamely to acquiesce in a decision which would be fatal to a privilege which other judges had admitted; or whether, in the last resort, they should come forward and say, not that they would increase a power that could in any sense be deemed unnecessary, but that they would omit no opportunity of marking their sense of a privilege which they were admitted to possess in their own inherent right, and that they would not fail to exhaust every method of defending and maintaining it. For his own part, he thought that the latter was the only proper and becoming course for the House to pursue. Because, even if they should ultimately fail, and be called upon to consider other alternatives, they would then at least stand in this less humiliating position—that they had not tamely submitted nor lightly abandoned a privilege which they felt to be essential to the proper discharge of their functions as a legislative body. No, the duty of the House was to fight the battle to the last; and then, if they were ultimately overcome, they could appeal with a good grace to the 332 authority of the state for that permanent protection which the law as it now stood would not afford them. He could not conceive what other course the House could pursue in a case were one of its undoubted privileges was assailed. But supposing Hint they were to recede upon that occasion—supposing that they were to acquiesce in the decision of the Court of Queen's Bench, he could not convince himself that, by such acquiescence, they would get themselves out of the difficulty. He took the position of the highly respectable judicial authorities who had decided against the House in the present instance; and he found that while they admitted that the House had the privilege of publication for the use of its own Members, they still fettered the exercise of that right with such restrictions as would inevitably tend to bring the House in conflict with the Courts of law. Upon this point he wished the House to remember that the question of the sale of parliamentary papers was entirely beside the subject. He begged hon. Members not to allow their minds to be influenced by any consideration of that question in connection with the point he was bringing under their notice. He prayed them not to be guided in their decision by any sort of prejudice on account of their being sellers of books. That was a question still open to discussion, and he reserved to himself the right of hereafter determining whether, in prudence and policy, it might not be well for the House to rescind the order authorizing the sale of papers. That, however, was a question entirely independent of the point now under consideration; and he would quote high authorities to show that it was so. Lord Denman says:In the first place I would observe that the act of selling does not give the plaintiff any additional ground of action or redress at law beyond the act of publishing. The injury is precisely the same in its nature, whether the publication be for money or not, though it may be much more extensively injurious when scattered over the land for profit,So that the House would not advance one single step in point of law if they were that night to resolve that the order authothorizing the sale of papers should be rescinded. He was perfectly ready to admit that, by rescinding the order, they would remove some unfavourable impressions in the public mind as to the right of sale; but they were now in collision with a court 333 of law, and he was showing, upon the authority of Lord Denman, that that collision could not be avoided, even if the order authorising the sale of papers were at once rescinded. As he had already stated, the judges admitted that they had the right of publication for the use of their own Members. Now, if that meant any thing at all, it meant that a publication made for their own use was a privileged publication. It could have no other meaning. But were they to acquiesce in the construction which the judges had put upon the law? If they did so, he thought they would at once be involved in enormous difficulties. Take, again, the instance of the 20,000,000l. voted for the emancipation of the negroes, and suppose this case:—He as a Member of the house of Commons, was in possession of all the papers relating to that matter. He had the dispatch of Mr. Huskisson relating to the cruelties practised upon female slaves—he had all the evidence which had operated to remove from the public mind the prejudices that had previously existed in favour of slavery—he was in possession of all the facts which had brought the House properly to appreciate the horrors of slavery, and determined them to pass a law for its abolition. He had voted for the grant of 20,000,000l., by which the emancipation of the slaves was accompanied. He returned to his constituents, and was questioned by them as to the voting of so large a sum of the public money. According to the construction put upon the law by the judges in the present instance, he, under such circumstances, though he was permitted to possess the evidence himself, would have no right to make it known to his constituents in order to justify his vote, or to explain the grounds upon which he had assented to so large an expenditure of the public money. Questioned upon the hustings by his constituents—having the volume of evidence in his hands—himself possessed of all the facts which induced him to regard the horrors of slavery as an intolerable evil, and a blot upon the honour of the nation—still, according to the construction of the judges, he was not at liberty to refer to one single page of the privileged volume, nor to adduce from its contents one single fact to explain his vote, and satisfy the minds of his constituents. For it was expressly laid down, apparently by the concurrent authority of all the judges of the court, that he, though possessed of 334 these papers for his own use, was not entitled to disclose one tittle of their contents to any other person. Mr. Justice Littledale says—It is said that it is proper that the Members of the House should have the right to send copies of all the parliamentary papers to their constituents, to justify themselves in case their constituents should find any fault with their conduct in Parliament. If the Member whose conduct is blamed by his constituents wishes to vindicate his conduct, he may send what parliamentary papers he pleases provided they do not contain any criminatory matter of individuals.Observe, that restriction involved the whole case. The decision of the court did not turn upon the point that he (Sir R. Peel), as a Member of the House of Commons, had no right to instruct Mr. Hansard to publish certain papers; but the judges expressly declared it to be their opinion, that the publication which he possessed as a Member of the House, was privileged only for his own use, and that he had no right to send it to his constituents to justify his conduct, unless it happened to contain no matter criminatory of individuals—a privilege hardly worth contending for. Mr. Justice Littledale continued his judgment in these terms:—I think it can never be considered as justifiable in a Member of Parliament to publish defamatory matter of other persons to justify his own conduct in Parliament.Then he could not publish any matter of accusation that might be made in the course of a parliamentary inquiry against a public officer. He (Sir R. Peel) as a Member of Parliament had power to address the Crown for the removal of a judge who might be a most popular man, and of very commanding influence in the country, tie might exercise his privilege of petitioning the Crown for the removal of such a man, but ho was not at liberty to say a word as to the grounds upon which he did so, lest he should disclose defamatory matter against him. Mr. Justice Patteson entertained precisely the same view; but he would refer again for a moment to the opinion of Mr. Justice Littledale, who said:The privileges of Parliament appear to me to be confined to the walls of Parliament for what is necessary for the transaction of the business there, to protect individual Members, so as that they may always be able to attend their duties, and to punish persons who are guilty of contempts to the House, or against 335 the orders and proceedings or other matters relating to the House, or to individual Members in discharge of their duties to the House and to such other matters and things as are necessary to carry on their Parliamentary functions, and to print documents for the use of the Members. But a publication sent out to the world, though founded on and in pursuance of an order of the House, in my opinion become separated from the House; it is no longer any matter of the House, but of the agents they employ to distribute the papers; their agents are not the House, but in my opinion they are individuals acting on their own responsibility, or other publishers of papers.What a mockery was this! The Speaker, in the exercise of an admitted privilege, ordered Mr. Hansard to do a certain act, which could only be done out of the walls of Parliament, and the moment that Mr. Hansard set to work to execute that order, the privilege of the House was lost, and its agent liable to be punished by a court of law. If that were so—if that were the conflict in which they were next to be engaged, it was plain that they would very shortly be involved in a situation of as much difficulty as that in which they now stood. Was it fitting, then, that they should acquiesce in the construction which the judges had put upon the law? Mr. Justice Patteson went, he thought, one step further either than Lord Denman or Mr. Justice Littledale. Mr. Justice Patteson said:—It is said, that if papers, however defamatory, must needs be printed for the use of the Members, as it is plain they must, and the point is not disputed, their further circulation cannot be avoided; for what is to be done with the copies upon a dissolution of Parliament, or upon the death or retirement of a Member? The answer is obvious: the copy of such defamatory matter ought to be destroyed, as it can no longer be used for the purpose for which it was intended; or at all events it must not be communicated to others.Now he would take the case of the last Speaker of the House, Lord Dunfermline, who had probably retired with a large mass of Parliamentary papers; if Lord Dunfermline made use of any one of those papers he would be liable to an action of libel. Lord Dunfermline's papers—the papers which had accumulated on his hands while he was Speaker of the House of Commons, were now no longer privileged; they lost their character of privilege as soon as the noble Lord ceased to be a Member of the House of Commons. 336 And Lord Dunfermline would be responsible, not only to the Court of Queen's Bench, but to any court of quarter sessions in the kingdom, if he presumed to make use of any one of those papers. Suppose, again, that a Member of the House should die possessed of a great number of these papers. Suppose, for instance, that he should leave behind him the whole of the parliamentary papers upon the subject of the foreign slave-trade, in which his hon. Friend the Member for the University of Oxford took a warm interest. Those papers were full of libels upon individuals—libels upon persons in this country—libels upon foreigners. Now, if, after the death of the Member, these papers should obtain any kind of circulation, or should simply pass from the deceased Member's library into the possession of any other person not a I Member of the House, he (Sir R. Peel) apprehended that, according to the construction put upon the law by the judges, any foreigner whose conduct wes reflected upon in any part of these papers would have a right to bring an action for libel, and to recover damages. What was to become of the bookseller who should happen to sell any of these papers. The moment that the Member died, the papers ceased to be privileged—who then would dare to touch them. No man could presume to do so; no man could take them to himself; or, at all events, no man could undertake to sell them without rendering himself liable to an action. Mr. Justice Patteson further said,Whether any individual Member might or might not be justified in communicating to some persons out of the House defamatory matter printed for the use of the House, I cannot pretend to say. Probably, upon any such question arising, the decision will be with a jury.Therefore he contended, that if the House were to acquiesce in the decision of the court, that the publication for the use of Members was privileged; but that the use of the publication by Members for the information of their constituents, subjected them to an action of libel; if the House acquiesced in that decision, he (Sir R. Peel) maintained, that the functions of the House of Commons, as a branch of the legislature, would be paralysed; they would at once become unfitted for the due discharge of their duties as the representatives of the people and 337 the framers of laws, unless indeed they were to act upon ignorant first impressions instead of upon those sound opinions which resulted from inquiry and the dissemination of correct information. He came now to a part of the question upon which much ridicule had been thrown—namely, that the House of Commons was the judge of its own privilege. Upon that point he should refer not to the authority of Members of the House itself, although he might quote the opinions of many of great eminence, but to the dicta of the highest judicial authorities, who at different times had been called upon to deal with the question as it arose in the courts of law. He would show that the doctrine, that the House was the judge of its own privilege, much as it was now sneered at, was a doctrine that had received the sanction of the highest judicial authorities in the land. The Attorney-general, in his very able speech, had referred to many of those learned and eminent authorities, but with the permission of the House, he (Sir R. Peel) would refer to a few more. Mr. Justice Wright held this doctrine:—The House of Commons is undoubtedly a high court; and it is agreed on all hands, that they have the power to judge of their own privileges.In Murray's case a writ of Habeas Corpus was applied for to bail a person committed for contempt by the House of Commons, and refused,—Mr. Justice Wright observing, that it never could have been the intent of the Habeas Corpus Act to give a judge in the court power to judge of the privileges of the House of Commons. Mr. Justice Dennison held precisely the same doctrine. Both those learned judges expressly admitted not only that the House had power to commit for contempt, but that it was the judge of its own privileges. What did these learned judges mean when they made that admission? And how could their opinion upon these points be made to correspond with the doctrine now laid down—that the House of Commons upon this matter of privilege must submit to the superior authority of the courts of law? Chief Justice De Grey held that the law of Parliament was the law of the land.When the House of Commons," said he "Adjudge anything to be a contempt or a breach of privilege, their adjudication is a conviction. This court cannot take cognizance of a commitment by the House of 338 Commons, because it cannot judge by the same law; for the law by which the Commons judge of their privileges is unknown to us. Courts of justice have no cognizance of the acts of the Houses of Parliament, because they belong ad aliud examen."Mr. Justice Gould concurred in the opinion expressed by the chief justice. Mr. Justice Blackstone also held, that the House of Commons was the only judge of its own privileges. In Crosby's case, Mr. Justice Blackstone said, that—Holt differed from the other judges on the point of the House of Commons being the only judge of its own privileges, but that the courts must be governed by the eleven, and not by the single one.'It was, perhaps, unnecessary to detain the House by referring to other authorities. It was enough to state, that the doctrine, that the House was the only judge of its own privileges, absurd and ridiculous as it was now held to be, was a doctrine which in the best times of legal and judicial learning had received the sanction of the highest judicial authorities. He must say further, that fortified by such authorities, he could not consent lightly to abandon a privilege which he believed in his conscience they properly and rightfully possessed—which he believed to be essential to the maintenance of their usefulness, and which he could not hold to be secure if every court, from the Queen's Bench down to the lowest tribunal, civil or criminal, in the country, could entertain an action for libel brought against an officer who had only obeyed the order of the House. The judges in the present instance said, that the Speaker of the House of Commons was free from question, and that a court of law would not interfere with him. He asked why they did not interfere? Upon what statute was the Speaker's indemnity founded? Was not the Speaker's right, the Speaker's privilege, as much interfered with if the poor instrument employed to execute his order, in the performance of that duty, were liable to be dragged into court, and to be ruined by actions at law? Was not the Speaker's right or the Speaker's privilege as much interfered with by such a proceeding as if the effort were made to bring him into court himself? Whilst such a state of things was allowed to continue, it was a mere pretence to say that the Speaker's right was respected—an idle mockery to contend, that the 339 Speaker's authority was not wholly disregarded. I do not conceal from myself, said the right hon. Baronet in conclusion, the fact that we have great difficulties to contend with. It is with pain I come to the determination of entering into a contest with the courts of law. You may tell me, that there are processes by which the payment of the money may be ultimately enforced in the courts. I admit the strength of the reasoning, and the authority conveyed by the experience of those who urge such a view, but this I say, with a perfectly safe conscience, that every instrument which the ordinary principles of the constitution sanction, an overpowering sense of duty urges me to use, before I seek for the solution of our present difficulties in the surrender of our privileges, An attempt to remedy this evil by legislation may be made only when the other means within our power are exhausted. I have heard it said, that the House of Commons has not that influence on the public mind that it once had, and that we look in vain for the sympathy of the public in our attempt to vindicate our privileges. That may be. The prediction so confidently made, that the great measure for altering the constitution of this House would conciliate public opinion, may be unfounded. I was no party to that change. I confess I expected its failure. It may be, that we are inferior to the great men who have sat within these walls in former periods. But I say, if by our inferiority, and degeneracy, we have prejudiced the character of the House, and diminished its influence with the public, we ought not to make that a reason for depriving it of that essential power which inheres in so noble an institution. Whatever may be our inferiority, we should feel we are but the tenants of a day—the fleeting occupants of the noble fabric, and the very circumstances of our tenure form additional reasons why with a kind of filial reverence we should prevent, if we can, a permanent injury from being inflicted on it during our temporary occupancy. But I say more, that no public object can be gained by the mutilation of our privileges. If you can once show a chasm in the building, and can say, "there once stood the House of Commons," depend upon it the void will be filled by a combination of turbid elements, acknowledging no respect for authority, observing no reverence for prescription, usurping the 340 powers of the other brunches of the Legislature, and defending the possession of those powers by means worthy of such usurpers. Sir, I shall conclude my vindication for having so long occupied the time of the House by an extract from a speech delivered by Mr. Crewe at an early period of our history, when the liberties of the House of Commons were threatened. Mr. Crewe, in encouraging the House to preserve its privileges, said in simple but emphatic language:—I would not have spoken about our privileges, if the thing questioned were only matter of form, and not of matter; but this is of that importance to us, that if we should yield our liberties to be but of grace, these walls that have known the holding of them these many years, would blush; and therefore we cannot, in duty to our country, but stand upon it, that our liberties and privileges are our undoubted birthright and inheritance.
§ The House divided:—Ayes 205; Noes 90: Majority 115.
|List of the AYES.|
|Abercromby, hn. G.R.||Collier. J.|
|Acheson, Viscount||Collins, W.|
|Adam, Admiral||Colquhoun, J. C.|
|Aglionby, H. A.||Courtenay, P.|
|Ainsworth, P.||Craig, W. G.|
|Anson, hon. Colonel||Currie, R.|
|Archbold, R.||Curry, Serjeant|
|Bailey, J.||Dalmeny, Lord|
|Bainbridge, E. T.||Divett, E.|
|Baring, rt. hon. F. T.||Donkin, Sir R. S.|
|Barnard, E. G.||Duff, J.|
|Barry, G. S.||Duke, Sir J.|
|Beamish, F. B.||Dunbar, G.|
|Bellew, R. M.||Dundas, C. W. D.|
|Berkeley, hon. H.||Dundas, F.|
|Bernal, R.||Easthope, J.|
|Bewes, T.||Eliot, hon. J. E.|
|Blake, M. J.||Ellice, E.|
|Blake, W. J.||Ellis, J.|
|Blennerhasset, A.||Ellis, W.|
|Blewitt, R. J.||Erle, W.|
|Bodkin, J. J.||Euston, Earl of|
|Boiling, W.||Evans, Sir De L.|
|Bridgeman, H.||Evans, G.|
|Briscoe, J. I.||Ewart, W.|
|Broadwood, H.||Finch, F.|
|Brocklehurst, J.||Fleetwood, Sir P. H.|
|Brodie, W. B.||Fort, J.|
|Brotherton, J.||Freemantle, Sir T.|
|Busfield, W.||Gillon, W. D.|
|Campbell, Sir J.||Gisborne, T.|
|Cavendish, hon. G. H.||Goulburn, rt. hon. H.|
|Chester, H.||Graham, rt. hon. Sir J.|
|Chichester, J. P. B.||Grattan, H.|
|Childers, J. W.||Greg, R. H.|
|Clay, W.||Greig, D.|
|Clements, Viscount||Grey, rt. hon. Sir C.|
|Clerk, Sir G,||Grey, rt. hon. Sir G.|
|Hardinge, rt. hn. Sir H.||Power, J.|
|Harland, W. C.||Price, Sir R.|
|Hastie, A.||Protheroe, E.|
|Hawkes, T.||Pryme, G.|
|Hawkins, J. H.||Ramsbottom, J.|
|Hayter, W. G.||Redington, T. N.|
|Heathcoat, J.||Rice, E. R.|
|Hector, C. J.||Rich, H.|
|Hill, Lord A. M. C.||Roche, W.|
|Hinde, J. H.||Rundle, J.|
|Hindley, C.||Russell, Lord J.|
|Hobhouse, T. B.||Rutherfurd, rt. hon, A.|
|Hodges, T. L.||Salwey, Colonel|
|Hodgson, R.||Sanford, D. A.|
|Hollond, R.||Scholefield J.|
|Holmes, W.||Scrope, G. P.|
|Hope, hon. C.||Seale, Sir J.H.|
|Howard, F. J.||Seymour, Lord|
|Howick, Viscount||Sheil, rt. hon. R. L.|
|Hughes, W. B.||Shelburne, Earl of|
|Hume, J.||Sinclair, Sir G.|
|Hutton, H.||Slaney, R. A.|
|James, W.||Smith, B.|
|Jervis, J.||Smith, G. R.|
|Labouchere, rt. hon. H.||Speirs, A.|
|Langdale, hon. C.||Standish, C.|
|Lascelles, hon. W. S.||Stanley, Lord|
|Lemon, Sir C.||Stanley, hon. W. O.|
|Lister, E. C.||Stansfield, W. R. C.|
|Loch, J.||Staunton, Sir G. T.|
|Lockhart, A. M.||Steuart, R.|
|Lushington, rt. hon. S.||Stewart, J.|
|Mackenzie, W. F.||Stuart, W. V.|
|Macnamara, Major||Stock, Dr.|
|Mashall, W.||Strickland, Sir G.|
|Martin, J.||Strutt, E.|
|Melgund, Viscount||Sutton, hon. J. H. T. M.|
|Morpeth, Viscount||Talbot, J. H.|
|Morris, D.||Tancred, H. W.|
|Murray, A.||Teignmouth, Lord|
|Muskett, G. A.||Thornely, T.|
|Nagle, Sir R.||Troubridge, Sir E. T.|
|Norreys, Sir D. J.||Turner, E.|
|O'Brien, C.||Turner, W.|
|O'Brien, W. S.||Vigors, N. A.|
|O'Callaghan, hon. C.||Villiers, hon. C. P.|
|O'Connell, D.||Vivian, Major C.|
|O'Connell, J.||Vivian, rt. hn. Sir R. H.|
|O'Connell, M. J.||Waddington, H. S.|
|O'Connell, M.||Wakley, T.|
|O'Conner Don||Wallace, R.|
|O'Ferrall, R. M.||Warburton, H.|
|Oswald, J.||White, A.|
|Paget, Lord A.||Williams, W.|
|Paget, F.||Wilshere, W.|
|Palmerston, Viscount||Winnington, Sir T. E.|
|Parker J.||Winnington, H. J.|
|Parker, M.||Wood, C.|
|Parker, R. T.||Wood, G. W.|
|Patten, J. W.||Worsley, Lord|
|Pease, J.||Wrightson, W. B.|
|Pechell, Captain||Wyse, T.|
|Peel, rt. hon. Sir R.||Young, J.|
|Pendarves, E. W. W.||TELLERS.|
|Pigot, D. R.||Maule, hon. F.|
|Ponsonby, hon. J.||Stanley, hon. E. J.|
|List of the NOES.|
|Acland, Sir T. D.||Inglis, Sir R. H.|
|Acland, T. D.||Jackson, Serjeant|
|A'Court, Captain||James, Sir W. C.|
|Archdall, M.||Jones, J.|
|Ashley, Lord||Kemble, H.|
|Attwood, W.||Knatchbull, right hon. Sir E.|
|Baring, hon. W. B.||Knightley, Sir C.|
|Bateson, Sir R.||Law, hon. C. E.|
|Bentinck, Lord G.||Lefroy, rt. hon. T.|
|Blackstone, W. S.||Liddell, hon. H. T.|
|Blandford, Marq. of||Litton, E.|
|Boldero, H. G.||Lowther, J. H.|
|Broadley, H.||Lygon, hon. Gen.|
|Bruce, Lord E.||Mahon, Lord|
|Bruges, W. H. L.||Maxwell, hon. S. G.|
|Buck, L.W.||Nicholl, J.|
|Buller, Sir J. Y.||Ossulston, Lord|
|Christopher, R. A.||Packe, C. W.|
|Chute, W. L. W.||Pakington, J. S.|
|Cole, Viscount||Pattison, J.|
|Conolly, E.||Perceval, hon. G. J.|
|Corry, hon. H.||Pigot, D. R.|
|Cresswell, C.||Plutnptre, J. P.|
|Darby, G.||Polhill, F.|
|Dick, Q.||Powerscourt Lord|
|D'Israeli, B.||Praed, W. T.|
|Duncombe, hon. A.||Pringle, A.|
|Eaton, R. J.||Richards, R.|
|Egerton, Sir P.||Round, J.|
|Elliot, Lord||Rushbrooke, Colonel|
|Fielden, W.||Shirley, E. J.|
|Fitzroy, hon. H.||Stormont, Viscount|
|Forester, hon. G.||Style, Sir C.|
|Freshfield, J. W.||Sugden, rt. hn. Sir E.|
|Gladstone, W. E.||Talfourd, Serjeant|
|Glynne, Sir S. R.||Thompson, Alderman|
|Goring, H. D.||Vere, Sir C. B.|
|Greene, T.||Verner, Colonel|
|Grimsditch, T.||Vivian, J. E.|
|Grimston, Viscount||Walsh, Sir. J.|
|Halford, H.||Williams, R.|
|Hamilton, Lord C.||Wood, Sir M.|
|Herries, rt. hon. J. C.||Wood, Colonel T.|
|Hogg, J. W.||TELLERS.|
|Hope, G. W.||Kelly F.|
|Ingham, R.||Godson, R.|
§ Lord J. Russell
moved that the sheriffs be ordered to pay over the money in their hands to Messrs. Hansard.
§ Captain Boldero
said, Mr. Stockdale, the prisoner, had entrusted him with a most respectful petition, praying to be heard at the bar. Here was a poor man, who had borrowed a coat to appear at the bar, and who yet obtained a verdict in the face of all the means which the law officers could bring against him. His case must be a sound one when he obtained a verdict under such disadvantages. He moved as an amendment, that Mr. Stock-dale be called to the bar.
§ Mr. Wakley
put it to the hon. and gallant Member, whether he was not injuring the case of the petitioner by pressing it at such an hour of the morning, when in all probability Mr. Stockdale was in bed? Besides, this course tended to prejudice the House against Mr. Stockdale, to whom he was sure they were desirous of giving every fair opportunity to vindicate himself.
§ Amendment withdrawn.
§ The House divided on Lord John Russell's motion:—Ayes 197; Noes 85: Majority 112.
§ [We do not repeat the lists, as both divisions were similar, but thirteen Members less voted on the second than on the first division.]
§ Lord John Russell
then moved, that the Sheriffs be called in, and the Speaker directed to read to them the resolutions of the House, and to ask them whether they had anything to say concerning the resolutions.
§ Mr. Law
wished to ask the noble Lord, whether, in the event of the sheriffs refusing to pay over the money to Messrs. Hansard, notwithstanding the resolution of this House, assigning as a reason, that they believed they were compelled by law to obey the Queen's writ issued by the Court of Queen's Bench, and that they were bound by oath to abide by the direction of that court; whether, after making such a statement, it was the intention of the noble Lord to proceed to extremities against those parties, by ordering them, for not doing what was contrary to their oaths or their duty, into the custody of the sergeant-at-arms?
§ Lord John Russell
I explained my views with regard to the sheriffs in what I addressed to the House at the beginning of the evening. I explained, that the course I thought it necessary to pursue would not be a course with regard to the views, or notions, and feelings of duty which the sheriffs might entertain, but with regard to what was most consistent with the privileges of this House, and with the maintaining of those privileges.
§ Question agreed to.
§ The Speaker
, calling the sheriffs by their names, communicated to them the resolution which the House had come to; and said, I am further to acquaint you, that if you have anything to state to the House, the House is now ready to hear you.
The sheriffs bowed, and retiring a few paces, bowed again to the Speaker, but neither of them said a word.
§ Lord John Russell
I confess I think, that the House has but one course to pursue upon this occasion. It appears to me, that the sheriffs in proceeding in contempt of the privileges of this House to seize the goods of the servants of this House, namely of Messrs. Hansard, and having sold the goods and retaining the money in their possession, contrary to the privileges of this House, committed an offence—that which the House has now by its resolution declared to be an offence—upon which the House would have been fully justified in proceeding at once to commit them to the custody of the sergeant-at-arms. I confess, however, that after proposing the course I did propose, they should be ordered to refund the money to Messrs. Hansard, and in desiring that the Speaker should read the resolution of the House to them, giving them an opportunity to say anything in their own justification to the House; after their having been summoned since last Thursday to appear at the bar of the House, and of course, after having had frequent consultations with those whom they thought were best calculated to advise them, I did think they would have so far purged themselves of the contempt as to declare their willingness to act in obedience to the orders of this House, as signified to them by the Speaker. There was one part of the case concerning which at an earlier stage of these proceedings there appeared to be some doubt, or ambiguity; though with the notions I entertain of the privileges of Parliament there was not much doubt with me, yet there seemed to be some doubt upon the mind of the under-sheriff, who was the legal adviser of the sheriffs, whether a paper sent to him by a solicitor containing certain resolutions of the House of Commons was an authority which he could properly consider equivalent to the authority of the House itself. But this 345 doubt can no longer exist. The sheriffs have now heard the resolutions entered into by the House, after considerable debate, read to them by the Speaker from the chair, and all doubt upon that subject, if they had any doubt upon it, must be at once at an end. Therefore, as they had not expressed their readiness to concur with the order of the House, as it has been suggested to them, it appears to me, that we can do no otherwise than proceed upon the breach of privilege which they have committed. I shall therefore move, that the sheriff of Middlesex, having been guilty of a breach of the privileges of this House, be committed to the custody of the sergeant-at-arms.
§ Mr. Law
said, that as far as he was able to collect from the reading of the resolution of the noble Lord, he was about to follow up the two resolutions which had been already submitted to the House, one of them indeed pointing to the sheriffs, but not naming them, complaining of the execution levied on the goods of Messrs. Hansard, in contempt of the privileges of the House, and the other suggesting that an order should be made upon the sheriffs to pay over the money which they now held in their hands as money belonging to the plaintiff in a cause, which was to be paid by the order of the court to the plaintiff, should be paid to the defendant instead of the plaintiff. The noble Lord having called the sheriffs to the bar had, through the Speaker, acquainted those public functionaries with the resolutions, which in their absence had been taken by the House. He was indeed surprised to learn from the lips of the noble Lord that the opportunity afforded by calling them to the bar was in expectation that they were about to make concessions to the House, and to declare their readiness to comply with what he would, with all deference, call one of the most unlawful orders that ever was made. The noble Lord was a great stickler for the privileges and free elections of the people. Of what materials did he suppose the sheriffs, who were fleeted by the citizens of London, to be, if they were expected to be cowed by such an order as this, and to prostrate themselves before what they believed to be an usurped authority on the prerogative of the Crown? It had been contended throughout this debate that unless they were sound in the principles embodied in their resolutions, they were acting contrary to the law, even the law of 346 Parliament; and, after the debates that had occurred, it would be but a sorry argument to the public that, by numbers only, her Majesty's Ministers had prevailed against the reasoning body. (Laughter). Are those party cheers for a purpose. They have as little effect upon me as your empty authority in this matter has upon the sheriffs; but I will stand here and say that had they the weakness, I had almost said the wickedness, to comply with it, they would be wholly unworthy of the trust as well vested in them by the Crown as by those who have elected them to their high and independent office. They had functions to discharge in relation to the most important portion of the people—the juries of this country. He was surprised that the noble Lord, administering as one of the Ministers of the Crown in that House her Majesty's Government, should counsel Gentlemen to be so forgetful of their duty to their Sovereign, and their obedience to the law, let alone their oath of office; and if he were surprised at the advice given by the noble Lord, what could he think of the learned Gentleman the Attorney General, the sworn officer of the Crown, advising another sworn officer of the Crown to heed not his oath. Did the House think that a threat would operate on the nerves, when it failed to operate on the understanding? He had no communication with the distinguished persons who had been at their bar, but if he had not mistaken the character, the independence, and the integrity of those gentlemen, he should think that they were incapable of yielding. What! make an order in the in the cause of Stockdale v. Hansard, that the money which they had received for the plaintiff should, in violation of their oaths, be kept from the plaintiff, and endeavour to gain it by duress! He would give them different advice.
§ Sir R. Inglis
said, that this was the first occasion that this House had ever assumed the character of a judicial court, exhibiting as little of its spirit as he had ever witnessed. The sheriffs of London were bound to obey the law; they had told the House on Saturday that there was not one word about the House of Commons in the oath which they had taken, and did the House mean to say that they should be called upon directly to forswear themselves? These gentlemen had sworn to obey the law, and he would ask what it would be but perjury, if individuals having so sworn should obey the authority of the House, and not the 347 Queen's writ? He defied any casuist to come to any other conclusion than that it would be direct perjury, if, having taken an oath to obey one authority, they should disobey that authority and obey another? The contest now began; and he told the noble Lord and those in that House who supported him, that he would exhaust his patience and the patience of many who sat near him before he would consent to institute what he called a most despotic and tyrannical proceeding. He wanted words to express his indignation. The claim of the majority was not against one law alone, but against the whole system of the law of this country; and upon that majority be the guilt and the responsibility.
§ Sir E. Knatchbull
wished to ask the noble Lord a question. The proposition then before the House was that the Sheriffs of Middlesex should be committed to the custody of the Sergeant at Arms for a breach of the privileges of that House. When that was done, the Speaker must sign his warrant, and he had no doubt, that in the warrant the noble Lord would take the advice which had been given to him upon the late occasion, and would fail to insert the cause. The question, therefore, which he wished to ask was, whether the commitment which the noble Lord proposed was in consequence of any breach of privilege committed in seizing the property in the cause of Stockdale v. Hansard, or whether it was founded upon the resolution of the House which had been communicated to them, that they should forthwith pay the money to Messrs. Hansard? If it was upon the latter ground, he took the liberty of reminding the noble Lord that all that had passed was, that the resolution of the House had been read to the sheriffs.
§ Lord J. Russell
thought that he had sufficiently explained the matter when he had proposed the present proceeding. He had stated that he conceived, in their proceeding in seizing the goods of Messrs. Hansard, as he believed illegally, the sheriffs had committed a breach of the privileges of that House. He had been anxious, as far as possible, seeing the embarrassment which they must be under in a question of difficulty coming before them which had not arisen for many years—he was anxious to avoid any extremity of this nature, and to give the sheriffs the opportunity of setting themselves right with the House. But the breach of privilege which they had committed was the breach in taking the 348 goods of Messrs. Hansard, and in depriving the servants of that House of their property. He had heard the hon. and learned Member for the University of Cambridge, and another hon. Member, declaim about the laws and the oaths of the sheriffs, but the question was, what was the law? His hon. and learned Friend the Attorney-general, and his other learned Friend, the Solicitor-general, who were supposed to know something of the law, had thought that if, instead of seizing the goods, the sheriffs had made a special return, as in the case of Kensington Palace, they would had acted in more conformity with the law. It was their duty to execute the Queen's writs, but in some cases they did not execute those writs in the cases of privilege, but made a special return, which was quite as consistent with their oaths as seizing the goods. Therefore, the question was, not whether there would arise any violation of the laws and of oaths, but whether the laws and the oaths would not be preserved. And he would only say in addition, that he would think worse of the sheriffs if he took the description of them from the hon. and learned Gentleman opposite; if, instead of saying that if they had incurred the displeasure of the House they were sorry that they had offended, they had set themselves up against the authority of the House of Commons as an usurped authority, he would have been disposed to deal more harshly with the sheriffs than he now was. As the case stood at present, he would think that if the House proceeded to commit them, further reflection on the resolutions would make them think that obedience to the writ might be yet proper, and he hoped that they would not take the hon. and learned recorder for their counsel.
§ Mr. Sergeant Jackson
rose to move that the House do now adjourn, in the anxious hope that the time which would be thus afforded for temperate reflection would probably induce the House to desist from taking the step proposed by the noble Lord opposite, and which appeared to him (Mr. Sergeant Jackson) one of the most harsh and most unjust proceedings that had ever been taken by any assembly. Was it becoming in the House of Commons to attack the two respectable functionaries, who had conducted themselves in such a praiseworthy manner, and had merited nothing but the approbation of the noble Lord himself? Was it becoming in 349 the House to attack the officers in the same manner as those who had set in motion the machinery of that law of which they were the officers? Why was it that the House before abstained from pronouncing an order, that the sheriffs should be committed to the custody of the sergeant-at-arms? It was because they felt, that they were mere Ministerial officers. What was the sheriff of Middlesex? Could they have refused to do that which they had done? If they had refused to execute the writ and to pay the money to the plaintiff, there must inevitably have been an attachment issued. With regard to the special return to which the noble Lord had alluded as being recommended by the learned Attorney and Solicitor Generals, he begged to say, that he was satisfied, that on the law of the case no such ground as that suggested existed, and that no return could be made. The noble Lord, the Member for Northumberland, had said, in the course of the debate, that no Gentleman on that side of the House had risen in his place and endeavoured to sustain the judgment of the Court of Queen's Bench; but he believed, that he spoke the sentiments of nineteen out of twenty of the lawyers in Westminster Hall, when he said, that that judgment was good law; and he could further say, that his learned Brethren on the other side, if they might be permitted to form an opinion, having read the case, were also of opinion, that the judgment was well founded, and was good law. The order which must be made, he supposed would be, that the money should be paid over to the defendant; but the Court of Queen's Bench had given their opinion, that this was an unjustifiable libel on Mr. Stockdale, and how could the law thus return the damages which had been assessed and levied to the man who was the convicted libeller? He concluded, therefore, by moving, that the House do now adjourn, trusting, that they would then have recovered their senses, without taking a step which appeared to him to be gross injustice.
§ The House divided on the adjournment: Aves 86; Noes 189: Majority 103.
|List of the AYES.|
|Acland, Sir T. D.||Bateson, Sir R.|
|Acland, T. D.||Bentinck, Lord G|
|A'Court, Captain||Blackstone, W. S.|
|Archdall, M.||Blandford, Marq. of|
|Ashley, Lord||Boldero, H. G.|
|Attwood, W.||Broadley, H.|
|Attwood, M.||Bruce, Lord E.|
|Bruges, W. H. L.||Knightley, Sir C.|
|Christopher, R. A.||Law, hon. C. E.|
|Chute, W. L. W.||Lefroy, rt. hon. T.|
|Cole, Viscount||Litton, E.|
|Conolly, E.||Lowther, J. H.|
|Corry, hon. H.||Mahon, Viscount|
|Cresswell, C.||Maxwell, hon. S. R.|
|Darby, G.||Nicholl, J.|
|Dick, Q.||Ossulston, Lord|
|D'Israeli, B.||Packe, C. W.|
|Duke, Sir J.||Packington, J. S.|
|Duncombe, hon. A.||Pattison, J.|
|Eaton, R. J.||Pemberton, T.|
|Egerton, Sir P.||Perceval, hon. G. J.|
|Eliot, Lord||Pigot, R.|
|Filmer, Sir E.||Plumptre, J. P.|
|Fitzroy, hon. H.||Polhill, F.|
|Forester, hon. G.||Powerscourt, Lord|
|Freshfield, J. W.||Praed, W. T.|
|Gladstone, W. E.||Pringle, A.|
|Glynne, Sir R. S.||Richards, R.|
|Goring, H. D.||Round, J.|
|Greene, T.||Rushbrooke, Colonel|
|Grimsditch, T.||Sibthorp, Colonel|
|Halford, H.||Stormont, Lord|
|Hamilton, Lord C.||Style, Sir C.|
|Herries, rt. hon. J. C.||Sugden, rt. hn. Sir. E|
|Hogg, J. W.||Talfourd, Sergeant|
|Holmes, W.||Thompson, Alderman|
|Hope, G. W.||Verner, Colonel|
|Ingham, R.||Vivian, J. E.|
|Inglis, Sir R. H.||Williams, R.|
|Jackson, Sergeant||Wood, Sir M.|
|James, Sir W. C.||Wood, Colonel T.|
|Kemble, H.||Baring, hon. W. B.|
|Knatchbull, rt. h. Sir E.||Godson, R.|
|List of the NOES.|
|Abercromby, hn. G.R.||Campbell, Sir J.|
|Acheson, Viscount||Cavendish, hon. G. H|
|Adam, Admiral||Chester, H.|
|Aglionby, H. A.||Chichester, J. P.|
|Ainsworth, P.||Childers, J. W.|
|Anson, hon. Colonel||Clay, W.|
|Archbold, R.||Clements, Viscount|
|Baring, rt. hon. F. T.||Clerk, Sir G.|
|Barnard, E. G.||Collins, W.|
|Barry, G. S.||Courtenay, P.|
|Beamish, F. B.||Craig, W. G.|
|Bellew, R. M.||Curry, R.|
|Berkeley, hon. H.||Curry, Serjeant|
|Bernal, R.||Dalmeny, Lord|
|Bewes, T.||Divett, E.|
|Blake, M. J.||Donkin, Sir R. S.|
|Blake, W. J.||Duff, J.|
|Blennerhassett, A.||Dunbar, G.|
|Blewitt, R. J.||Dundas, E. W. D.|
|Bodkin, J. J.||Dundas, F.|
|Bolling, W.||Dundas, hon. J. C.|
|Bridgeman, H.||Easthope, J.|
|Briscoe, J. I.||Elliot, hon. J. E.|
|Broadwood, H||Ellice, E.|
|Brocklehurst, J.||Ellis, J.|
|Brodie, W. B.||Ellis, W.|
|Brotherton, J.||Evans, Sir De L|
|Busfeild, W.||Ewart, W.|
|Finch, F.||Parker, R. T.|
|Fleetwood, Sir P. H.||Pease, J.|
|Fremantle, Sir T.||Pechell, Captain|
|Gillon, W. D.||Peel, rt. hon. Sir R.|
|Gisborne, T.||Pendarves, E. W. W.|
|Gore, O.||Pigot, D. R.|
|Goulburn, rt. hon. H.||Power, J.|
|Graham, rt. hn. Sir J.||Price, Sir R.|
|Grattan, H.||Pryme, G.|
|Greg, R. H.||Ramsbottom, J.|
|Greig, D.||Redington, T. N.|
|Grey, rt. hon. Sir C.||Rice, E. R.|
|Grey, rt. hon. Sir G.||Rich, H.|
|Hardinge, rt. hn. Sir H.||Roche, W.|
|Harland, W. C.||Rundle, J.|
|Hastie, A.||Russell, Lord J.|
|Hawkes, T.||Rutherfurd, rt. hn. A.|
|Hawkins, J. H.||Salwey, Colonel|
|Hayter, W. G.||Sandford, E. A.|
|Heathcoat, J.||Scholefield, J.|
|Hector, C. J.||Scrope, G. P.|
|Hill, Lord A. M. C.||Seale, Sir J. H.|
|Hinde, J. H.||Seymour, Lord|
|Hobhouse, T. B.||Sheil, rt. hon. R. L.|
|Hodges, T. L.||Sinclair, Sir G.|
|Hodgson, R.||Smith, B.|
|Hollond, R.||Somers, J. P.|
|Howard, F. J.||Standish, C.|
|Howick, Viscount||Stanley, Lord|
|Hughes, W. B.||Stanley, hon. W. O.|
|Hume, J.||Stansfield, W. R. C.|
|Hutton, R.||Staunton, Sir G. T.|
|James, W.||Steuart, R.|
|Jervis, J.||Stuart, W. V.|
|Labouchere, rt. hn. H.||Stock, Dr.|
|Langdale, hon. C.||Strickland, Sir G.|
|Lascelles, hon. W. S.||Strutt, E.|
|Lemon, Sir C.||Sutton, hn. J. H. T. M.|
|Lister, E. C.||Talbot, J. H.|
|Loch, J.||Tancred, H. W.|
|Lockhart, A. M.||Teignmouth, Lord|
|Lushington, rt. hn. S.||Thorneley, T.|
|Mackenzie, W. F.||Troubridge, Sir E. T.|
|Macnamara, Major||Turner, E.|
|Marshall, W.||Turner, W.|
|Martin, J.||Waddington, H. S.|
|Melgund, Viscount||Vigors, N. A.|
|Morpeth, Viscount||Villiers, hon. C. P.|
|Morris, D.||Viivan, C.|
|Murray, A.||Vivian, rt. hn. Sir R.H.|
|Muskett, G. A.||Wakley, T.|
|Nagle, Sir R.||Wallace, R.|
|Norreys, Sir D. J.||Warburton, H.|
|O'Brien, C.||White, A.|
|O'Brien, W. S.||Williams, W.|
|O'Callaghan, hon. C.||Wilshere, W.|
|O'Connell, D.||Winnington, Sir T. E.|
|O'Connell, J.||Winnington, H. J.|
|O'Connell, M. J.||Wood, C.|
|O'Connell, M.||Wood, G. W.|
|O'Conor Don||Worsley, Lord|
|O'Ferrall, R. M.||Wrightson, W. B.|
|Oswald, J.||Wyse, T.|
|Paget, Lord A.||Young, J.|
|Palmerston, Viscount||Maule, hon. F.|
|Parker, J.||Stanley, hon. E. J.|
§ Sir M. Wood
moving, that the sheriffs be allowed until the meeting of Parliament this day to give their answer, whether they will pay the money to Messrs. Hansard, pursuant to the order of the House.
§ Mr. Godson
reminded the hon. and learned Attorney-general, that in the outset of his speech to-night he had expressed a hope, that the result of the proceedings would be such as to afford the sheriffs the means of making such a statement to the Court of Queen's Bench on the next day, as would induce the court to discharge the rule. He certainly thought the sheriffs ought to be placed in the situation of offering to the Court of Queen's Bench a resolution of that House as their reason for not paying the money to Mr. Stockdale. To commit them till the next meeting of the House would answer no purpose, while it would deprive them of the means of answering in the Court of Queen's Bench. The House would be virtually abandoning its own object, by not acceding to the motion of the hon. Baronet.
§ Mr. Hume
thought, that before the House acceded to the motion of the hon. Baronet, they should ascertain whether the sheriffs might not, before the next meeting of the House, be ordered by the Court of Queen's Bench to pay the money to Mr. Stockdale. If there was a probability of that event taking place, as the Attorney-general seemed to consider there was, it would not be right for the House to adjourn without coming to a decided resolution.
§ Viscount Howick
suggested, that the proceeding recommended by the hon. Baronet was somewhat irregular. The House had already adjudged the sheriffs to have been guilty of a contempt. Surely to give persons so situated time to consider whether or not they would comply with the orders of the House, was inconsistent with their practice. He believed the rule of both Houses was, that when they had declared, that any party had been guilty of a breach of privilege, that he was instantly ordered to be committed in contempt, and it was only on the petition of the parties, and making amends as far as they could for their offences, that the House was accustomed to adopt the course suggested. He thought, that the course recommended by the hon. Baronet would be irregular, and would tend to lessen the dignity of the House.
§ Sir E. Knatchbull
did not think, that the House was now in a position to deal with this matter as an original breach of privilege. They should have done so on Saturday, when the sheriffs were examined, and when they made the avowals which they did at the bar of the House. He hoped, that the majority would not take any step, that would put the House in a worse position than it now was in, for they had not yet received any answer from the sheriffs as to the course they intended to pursue. They had given the Sheriffs but little time for consideration, and there would be an appearance of harshness in their proceedings if they pressed for an immediate answer. The hon. and learned Attorney-general had said, that he believed that the Court of Queen's Bench would be satisfied if it was made clear to them that the sheriffs were only obeying the orders of the House.
The Attorney General
stated that the right hon. Gentleman had mistaken what he had said. He had observed that he had little doubt that on the court hearing the order and the reasons that the sheriffs had for obeying it, that they would be regarded as sufficient in point of law for not paying the money to Mr. Stockdale. With respect to the present motion, the sheriffs had had an opportunity of purging themselves from the contempt, but they had not availed themselves of the opportunity. Indeed, the sheriffs might show no cause to the rule, and might allow the judgment to be made absolute, without observation, if the House did not interfere. Under these circumstances, he thought that it would be impossible to comply with the suggestions of the hon. Baronet.
§ Sir E. Sugden
said, that if the defence of the Sheriffs held good in the Queen's Bench on the order of the House, it must be in the validity of the resolutions of the House, and not merely because the House so ruled. His hon. and learned Friend stated that the sheriffs might not show cause to the rule that had been obtained, and thus the attachment might issue, and the money be obtained; but Mr. France, the very intelligent under-sheriff, whose evidence they all listened to with so much attention on Saturday, distinctly stated that it was intended to do so, and to state to the court all the facts of the case. After this there could be little doubt on the subject.
Sir T. Acland
said, he had strong 354 feelings inducing him to try and stay some of the mischief they appeared to be about doing. The majority of the House must surely see that there were a number of persons in the minority, who, perhaps, from a want of comprehension of the high position sought for by the majority, could only view the present proceeding as a new step of arbitrary authority by which the House of Commons sought to bend the laws to their own will. Plain men would never be able to understand the principle upon which they were proceeding, and by a perseverance in their present course they would create more dissatisfaction and mistrust than could well be conceived, and eventually Englishmen would no longer look for protection to that quarter upon which for generations they had been in the habit of relying. To ordinary persons it would appear that the sheriffs were acting under the influence of an oath which bound them conscientiously to execute the Queen's writs, and it appeared strange to punish them for the conscientious performance of their duty. They had not been asked, nor at that late hour did he wish that they should be asked, if they intended to pay back the money. On Saturday last, however, he remembered that the noble Lord, after the examination of Mr. France, required forty-eight hours to consider as to the course he should pursue, though he then well knew the course the sheriffs were likely to take in this matter. The House determined to give the noble Lord the forty-eight hours he required; and yet they would not give five minutes' time for consideration to the sheriffs, although it was by the anxiety of the sheriffs to attend to their caution that they were in a position to require the money to be paid back at all; for otherwise it would have been paid long ago. He thought the concession of ten or twelve hours for consideration would be well for the majority—he thought it would be well also for the minority, as well as for the parties before them. If the time proposed for consideration were allowed, anything like factious opposition to the majority would, in his opinion, be little justified, and, at all events, he would be no party to it. But there were many, like himself, who were determined to avail themsleves of the protection afforded by the rules of the House, and in that case a few hours would leave them independent of the noble Lord's courtesy.
§ Adjourned. Sheriffs to attend next day.