§ Lord John Russell
moved, that the Order of the Day for the further consideration of Messrs. Hansard's petition be now read.
§ Mr. T. Duncombe
wished to inquire, whether the noble Lord would have any objection to lay on the table of the House copies of the warrants upon which Mr. Stockdale and the sheriffs had been committed to the custody of the Sergeant-at-arms.
§ Lord John Russell
believed that such a course was quite unusual. He had never heard of it being adopted on any other occasion. He begged to consider the hon. Gentleman's question further before he gave an answer to it.
§ Mr. T. Duncombe
Then I beg to move at once that copies of the warrants be brought before the House.
§ The Speaker
intimated, that the hon. Member could not do so, as the Order of the Day had been moved.
§ Mr. T. Duncombe
It is most important that they should be produced, and if the noble Lord does not consent to produce them, I shall move for their production by way of amendment to the question now before the House. I understand that the warrants under which these parties have been committed to the custody of the Sergeant-at-arms do not state on the face of them the offence of which the prisoners have been guilty. The House has voted, that they have been guilty of a breach of privilege, but upon the warrant under which they are committed the nature of the breach of privilege is not stated. I maintain that this is necessary, if the proceedings in this instance are to be consistent, and in conformity with the usual practice of Parliament. As precedent is everything, I beg to give an instance where the offence of the individual committed is stated in the warrant. I allude to the case of Gale Jones, who was committed by order of the House on the 21st February, 1810, and I will read the copy of the warrant under which he was so committed. The hon. Member read the warrant, which was in substance as follows:—Whereas the House of Commons have this day adjudged that John Gale Jones, having written and caused to be printed a certain paper containing libellous matter reflecting upon the conduct of the House, and some of the Members thereof, has thereby been guilty of a high breach and contempt of the privileges of this House, and thereupon ordered that the said John Gale Jones be committed," &c.Here it will be seen, that the offence for which the individual was deprived of his liberty was clearly stated. I think that the courts of justice, and the public, have a right to know the ground upon which you are detaining the sheriffs and Mr. Stockdale upon this occasion, and more particularly, as it is generally understood that this is a new offence. The object of all punishment, as I understand, is to deter other individuals from committing a similar offence. Such being the case, I do not know how the public are to be made aware of what the crime of these parties is, unless it be stated upon the face of the warrant under which they are deprived of their liberty. I cannot understand, therefore, why there should be 424 the slightest hesitation on the part of the noble Lord in granting my motion. If he does hesitate, it will certainly have another very bad effect upon the public mind. I can scarcely understand why he should refuse it, unless, indeed, he thinks the power and authority exercised on this occasion at all equivocal. For my own part, I think that the power and authority exercised by the House is equivocal, but I am obliged to bow to the decision of the majority. If you really think, that your commitment of these individuals will bear the light of day, I say, put it upon the face of your warrant, and let the world know what you have done. I therefore beg leave to move, "That copies of the warrants issued by Mr. Speaker for the commitment of John Joseph Stockdale, and of William Evans, and John Wheelton, Esqrs., be forthwith laid before this House."
§ Sir Edward Knatchbull
could not think that the noble Lord would oppose the motion. All that they, the minority, now wished, was to see the legal instrument under which the majority had exercised the authority of the House.
§ Sir Edward Sugden
owned he could scarcely believe, that which was palpable to his sense in what was passing before the House. He could scarcely believe, that the noble Lord would refuse to place before them a copy of a warrant of commitment ordered by themselves. The noble Lord was exceedingly offended with an hon. Gentleman last night for calling him the prosecutor in this case. If, indeed, the noble Lord were not the prosecutor, he had, at all events, conducted the prosecution; and that any Member of the House, conducting a prosecution on the part of the House, should draw up a wan ant of commitment, and then refuse to show to the House the instrument—[Lord John Russell: I have not refused.] He understood that the noble Lord had refused. [Lord John Russell: By no means.] Silence sometimes passes as a proclamation of intention. I put it to the House whether the noble Lord's silence, as applied to the motion of the hon. Member for Finsbury, was taken generally as a refusal to comply with it. I congratulate the noble Lord if he now takes a different view of the subject.
§ Lord John Russell
observed, that the right hon. and learned Gentleman had commenced his address to the House 425 without giving him an opportunity of explaining his intentions. The hon. Gentleman, the Member for Finsbury, asked him, without giving him any notice whatever, whether there would be any objection to lay before the House copies of the warrants under which the Speaker, by direction of the House, had committed these parties. He (Lord John Russell) stated, that he was not aware that such a course was usual, or had been adopted in any former instance, and he therefore said, that he should rather take some time to consider the question before he gave a reply to it. He did not know how the right hon. and learned Gentleman could interpret that into a refusal to produce the papers. Having taken time to consider, he now stated his opinion, that if the House wished for the production of the warrant of commitment, he should have no objection to its being laid on the table, but he did not think it advisable that the papers should be produced in such a manner as to insinuate that the House entertained great doubts of its own authority. He thought it objectionable, that this proposition should be brought forward as an amendment to the order of the day. With regard to the production of the warrant itself, he had no objection to it if it should be thought advisable, but he did object to it as an amendment on the order of the day. He would suggest, therefore, that the motion and amendment should be both withdrawn, and that the hon. Member for Finsbury should then submit the latter as a substantive motion.
§ Motion and amendment both withdrawn.
§ Mr. T. Duncombe
then moved, that there be laid before the House copies of the warrants of commitment of John Joseph Stockdale, and of William Evans, Esq., and John Wheelton, Esq.
§ Motion agreed to.
§ Lord John Russell
then again moved, that the Order of the Day for the further consideration of Messrs. Hansard's petition be read.
§ Sir Edward Knatchbull
begged to ask a question of the noble Lord, in reference to the prisoners now in custody. Was it intended to detain them where they now were, or to remove them to some other place of confinement?
§ Lord John Russell
replied, that he had at present no intention of proposing their removal to any other place,
§ Lord John Russell
Because, having heard that it was intended to apply for a habeas corpus, he wished them to remain under the authority of the House while that matter was pending.
§ Order of the day read.
§ Lord John Russell
then proceeded to say, that with respect to Thomas Barton Howard, the petition of the Messrs. Hansard stated him to be the attorney of Stockdale in this action; and the affidavit of the under-sheriff, as well as the petition, contained documents purporting to be signed by this Mr. Howard, as Stockdale's attorney. Now though, perhaps, this was sufficient, yet, to give Mr. Howard the opportunity of stating whether or not his name had been forged or improperly used, he thought it necessary to call that gentleman to the bar. He therefore now moved "that Thomas Burton Howard be called in."
§ Sir Edward Sugden
rose to move as an amendment the addition of the words "to be forthwith discharged." He had hoped that a few hours' reflection would have induced the House to pause before they persisted in this course. He was not surprised at the seeming hesitation of the noble Lord to produce copies of the commitment, because the mode in which the case was conducted did not reflect the highest credit upon the proceedings of the House. The Attorney-general had stated, over and over again, if the order were made, the Sheriffs would have a good defence to present to the Court of Queen's Bench, in answer to the rule sought against them. That statement had considerable effect on the mind of the House. He had told the House not to rely upon that statement, and the event had proved that he was correct. He had also had occasion to state more than once what he believed to be the law, namely, that although upon the face of the commitment the cause for commitment was assigned, yet that no court of Westminster-hall would have power to grant a habeas corpus. That point had been so decided; and he believed it to be in accordance with the law of the land. But the Attorney-general, afraid of the case as it stood, and therefore afraid of stating the fact on the face of the warrant, framed a general warrant, and thereby absolutely withheld from the knowledge of the Court of Queen's Bench the cause of 427 commitment. All that the court could know was, that an act had been done in breach of the privileges of the House. What that act was they had no means of knowing. They did not know what the thing was which the House regarded as a breach of privilege. Observe what the first effect of this had been. That day's proceedings in the Court of Queen's Bench would shew what the first effect had been. Upon a motion to make the rule absolute, the warrant of commitment was stated before the Court of Queen's Bench, and the court made this observation: that the motion before it was a motion of course, and that the fact of the commitment had not the slightest operation upon their judgment, or upon the case before them. No, how could it? For all that appeared on the warrant of commitment was, that the sheriffs had done some act in breach of the privileges of the House. There was nothing on the face of the commitment to tell the judges that the act for which the sheriffs were committed was an act done in obedience to the order of the court. The effect of this was to keep the Court of Queen's Bench, as a court of law, in utter ignorance of the real ground upon which the commitment had been made. Was this fair? If the Attorney-general were correct in his statement, that the order of the House would be a defence against making the rule absolute, at least the warrant ought to have upon the face of it that which would serve to acquaint the Court of Queen's Bench with the ground and cause upon which the committal was made. The reason for withholding this information was clearly to keep the Court of Queen's Bench in ignorance of the fact, that the act for which the parties were committed was an act committed in obedience to the order of the court itself. He could not conceive anything more derogatory, both to the honour and to the proceedings of that House, than the mode of withholding information from the knowledge of the court. Why was this course pursued? Simply because the House was afraid to state the real truth of the case. To come, however, to the question now more immediately before the House—would they, or would they not, after all that had passed, proceed to commit the attorney for his share in the transaction. The noble Lord could only wish; to commit the attorney in order to be consistent with himself. But how far had the noble Lord already been consistent with 428 himself? He wished to press this upon the attention of those who had voted for the committal of Stockdale and the sheriffs—namely, that it would be quite as consistent for them to vote for the immediate discharge of Mr. Howard, as it was for the noble Lord to assent to the discharge of Mr. France, Mr. Burchell, and several other persons, who in the first instance were ordered to attend the House, but to whose discharge the noble Lord had assented? In the first place there was the bailiff, who beyond all doubt must, in the noble Lord's view, have committed a breach of privilege. In the next place there was Mr. France, the under sheriff, who, according to the noble Lord's view, could have been no less guilty, seeing that in point of fact he had been the sheriff's adviser throughout. But Mr. France was allowed to escape. Then came Mr. Burchell, who had acted judicially in the matter. The noble Lord did not even venture to bring that gentleman to the bar. Why not? Because the noble Lord knew that by so doing he should be invading the judicial bench, even though it would be in the person of so humble an officer. The noble Lord was afraid to measure the weapons of the House against the legal power of the courts of law. The noble Lord had consented to discharge all these gentlemen; did he want more victims? The House had tried its power upon persons worthy in point of station of competing with it. In that respect the House had done not an unworthy act, if it had done an illegal act; but to pursue the attorney, who had merely acted in the way of his profession, appeared to him to be a most unnecessary and most undignified exercise of power. His object in offering these few remarks was to press upon the gentlemen who composed the majority, that they had already done everything that was necessary to a complete vindication of the privileges of the House, and to implore them not to persist in proceeding further. Had the noble Lord heard of the language which had been used by the counsel in the court this day? The counsel stated himself to be of his own knowledge acting contrary to the orders of, and in contempt of the resolutions of, the House of Commons? According to the channels of communication open to them all—["Order order"] surely it was perfectly orderly to refer to the ordinary means of communication open to them all—according to the information furnished by those channels, the counsel, desirous, he supposed, of making himself a martyr in this case, 429 professed himself acting in direct opposition to the resolutions of the House. But the court and the whole bar of England supported him in that view. The counsel, therefore, might very easily and cheaply make that statement, because he knew he should be responded to by a hundred counsel in succession, all of whom would make the same declaration. He called upon the House, therefore, to withdraw from the idle and unnecessary vindication of their power in this case. If they proceeded further they would only embarrass themselves a thousand fold, without establishing a single further point in their favour. The noble Lord had been asked whether he meant to remove the sheriffs from the custody of the Sergeant-at-Arms to a safer custody, and the noble Lord had replied that he had not yet made up his mind. Now he (Sir Edward Sugden) entreated the noble Lord not to remove those gentlemen from the cell of the House of Commons. Many Members of the House were desirous to pay their personal respects to the sheriffs, and it certainly would be a great convenience if those gentlemen were in a place in which the visits of condolence and of congratulation upon their conduct, which many hon. Members would be anxious to pay them, might be easily paid. He had no hesitation in saying, for himself, that he came with pain into the House of Commons, when he knew there were confined within its prison cells two honourable and innocent men. He was sorry to se ea petition, such as that which had come from Mr. Stockdale, dated from their prison cell. The commodiousness of the apartment might be everything that was proper, but that gave no alleviation to the mind of those who were bound within its walls. It was freedom that gave to the English mind contentment in the humblest cottage; but once bind him, even in a palace, and he became a slave. And yet in the prison cell of that House were confined, not only Mr. Stockdale, but the sheriffs of London and Middlesex, with whose conduct no one could find any fault; nay, of whose conduct he, for one, approved, as most honourable and just; and who, even if it were a breach of privilege, had pursued precisely that course which he should have pointed out to be pursued by persons in their situation, if he had had the honour of advising them upon it. The right hon. and learned Gentleman concluded by moving as an amendment, that to the motion of the noble Lord the following words be added—"for the purpose of being forthwith dis- 430 charged from further attendance on this House."
The Attorney General
said, it was with pain that he opposed the amendment of his right hon. and learned Friend. It could not be supposed that he had any ill-will against Mr. Howard. He had never seen that gentleman in all his life, and was wholly ignorant of his name and character; but he knew this—or at least had good grounds for believing—that Mr. Howard was the attorney who sued out the writ against Messrs. Hansard; that he filed the declaration, sued out the writ of inquiry, and that he prosecuted the action in every stage, with full knowledge that he was acting in contempt of the privileges of the House. Under these circumstances, he thought they had only one course to pursue. According to precedent and upon principle, what they had hitherto done was perfectly right. It was true, Mr. Stockdale had been committed! but if Mr. Stockdale was to be allowed to bring actions against Messrs. Hansard by means of the agency of Mr. Howard, what did the House gain by committing Mr. Stockdale? The object was to prevent similar actions, and they could only do that by proceeding criminally against those who were the instruments of such actions, in order that other persons, seeing the punishment inflicted upon Mr. Howard, might know what it was they would be liable to, and might be induced thereby to refrain from following his example. With regard to precedents, he himself, the other night, quoted many cases that had occurred, both in the House of Lords and in the House of Commons, for the course they were now pursuing. In Miller's case, which occurred in 1771, was stated by the committee to whom the question was referred, that the committing of the plaintiff and the attorney in the action was one means adopted by the House of Commons for maintaining its privileges. Why was the House of Commons to depart from that course of proceeding in the present instance? Had there been any signs of repentance on the part of any of the parties concerned for having committed this breach of privilege? Had his right hon. and learned Friend given any signs of regret that the privileges of the House had been invaded, or had he given them any encouragement to believe that, a future invasion of them would not take place. Had the judges of the Court of Queen's Bench expressed any intention to follow a different line of conduct 431 to that which they had already pursued? His right hon. and learned Friend, had told them that, not only were the judges against the House, but the whole bar was also against them. Did not this make it more imperative that the jurisdiction or privilege should be increased by the House itself, because, if they had to entrust their privileges to the decision of the Courts of Westminster Hall, and not only the judges, but all the counsel, were unanimous against them, in what situation was the House of Commons placed? Not only, (according to his right hon. and learned Friend) were the present judges against the House of Commons, but all the bar, from whom the future judges who would have to decide upon the privileges of the House, would have to be chosen were against them. And this was brought forward by his right hon. and learned Friend as an argument why the House should surrender that jurisdiction which it had always hitherto possessed. It seemed to him, looking at the whole argument, that there was no room for hesitation as to the course they ought to pursue, and that they would stultify themselves as to the proceedings they had hitherto taken, if they did not follow them up by calling the attorney to the bar. His right hon. and learned Friend had made some observations respecting the form of the warrant in not setting forth the grounds on which the committal of the parties took place; but the more he considered that point, the more he approved of the course adopted. The hon. and learned Member for Ripon (Mr. Pemberton) had said, that if the cause were set out in the warrant for which the person was committed to the custody of the Sergeant-at-Arms, the courts of law could not inquire into its sufficiency. But Lord Denman has reserved to himself the power to inquire whether the cause set out in the warrant was sufficient or not sufficient to justify the House to commit the party. Now, he had no hesitation in saying, that with all his veneration for the opinions of the judges, on matters within their jurisdiction, he had not confience in the judges upon matters of privilege. They had decided against the House on the point of privilege contrary to the opinion even of the hon. and learned Member for Ripon himself, who had said, that the publication in question was an illegal publication. The decision, therefore, of the Court of Queen's Bench was wrong, and according to the opinion of that hon. and learned Member, the court, in a matter of privilege, had 432 come to an erroneous and illegal decision. That, however, was not the opinion of the hon. and learned Member for Ripon only; it was the opinion of every English lawyer, who had spoken, except the hon. and learned Member for Ipswich, and even he shook his head! so that he was delighted to suppose that even he was not prepared to stand stand up and say that this was a sound and legal decision. But when he found there were such decisions made by judges, of the land, he owned he had no confidence in their judgments upon such a subject, and he, therefore, deliberately and designedly so framed the warrant that there could be no apprehension, that through any act of usurpation on their part, they would inquire into the power of commitment by the House of Commons. No hardship was inflicted upon any one by adopting this course. The sheriffs well knew what was the cause of their committal; Mr. Stock-dale also knew why he was committed; and the public well understood the grounds on which the House had proceeded. The Courts of Westminster-hall would not complain for the cause being set out in the warrant, they had no right to review it. In Lord Shaftesbury's case an objection was raised that the cause of committal was not set out in the warrant, when it was held by the Court of King's Bench and the Lords, that it was not necessary, that it was enough to adjudicate that party had been guilty of a breach of privilege, and that for that reason he had been committed to the custody of the usher of the black rod. The right hon. and learned Gentleman had rather taunted him with having declared that the resolution of the House of Commons, ordering the sheriffs to pay the money back to Messrs. Hansard, would be a justification which the judges would allow to be good, and that the rule would be discharged. He begged to remind the House, that he never did state it to be his opinion, that the Court of Queen's Bench would sustain the privileges of the House by recognising the plea of justification; what he stated then, and what he would now state again, was, that he conscientiously believed that the resolution of the House was a good defence on the part of the sheriffs, and that the rule applied for against them ought to be discharged; and he could not be considered outrageously wrong even in the opinion of the learned judges themselves, for if he had been rightly informed, they had deliberated together near an hour before they pronounced their de- 433 cision. If the judges hesitated, he might be accused in supposing that it was good ground for discharging the rule. He did not at all regret the course which he had taken upon this occasion. In the first instance he did place confidence in the judges with regard to the privileges of the House. He entertained the hope that they would have followed the precedents set them by their predecessors; but they had come to a judgment upon the question which he could hardly find any lawyer prepared to maintain. His confidence in the judges deciding upon matters of privileges had ceased. What, then, was the course the House were now to take? He considered that they were bound to exercise the powers vested in them, and to proceed in a summary manner according to principle and precedent, in order that they might defend their own privileges by their own strength. The power of committal was the weapon with which they were armed by the Constitution, and which, in their own defence they were fully justified in wielding.
§ Mr. Freshfield
said, he would stand between his hon. and learned Friend and the House but for a few moments. The Attorney-general had thought it necessary to disclaim any feeling of ill-will towards Mr. Howard. He (Mr. Freshfield) begged to make the same disclaimer. He never saw that gentleman till last night; but being of the same profession he should feel himself disgraced if he withdrew himself from the question at the present moment, or if he declined identifying himself with any principle involved in the conduct that gentleman had adopted. It appeared to him that this was a question upon which the House might well hesitate. According to precedent, it was usual to commit the plaintiff, the attorney, the counsel, and the judges. He could easily understand why, if they proposed to commit all the other parties, they should commit the attorney among the rest; but he did anxiously press upon the House the extreme danger of making the distinction which it was now attempted to be made, of not touching the judges, not touching the counsel, but of taking into custody the lower branch of the law—imagining, he supposed, that that branch could be attacked with more success, in fact, with impunity, because they had less power and less sympathy with the public. He anxiously implored the House to consider the consequence of placing a person in a 434 situation in which he could obtain no legal advice in reference to his legal rights. What possible complaint in the present case could be urged against the attorney which did not equally apply to the counsel with whom he himself advised? Was it to be endured, that any subject of this realm should be placed in a situation not to be able to obtain advice when in need of it, and that he should be driven to act in his own person, without the benefit of that discretion with which a professional man could furnish him? But it really appeared that the time of the House was wasted in their acting as they now did; because the House might be assured that any person having a right would never be in want of a professional man to have that right asserted in every court into which it could be carried. Mr. Howard might be committed, but if that could prevent him from persevering in the discharge of his duty, he believed there were hundreds of men in his own rank of the profession, who would feel themselves disgraced if they did not afford all the legal assistance to any gentleman who might have occasion for it, and which it was in their power to render. He almost thought indeed that it was in the power of a court of justice to enforce against an attorney, as one of its officers, on order that he should render that assistance to any man so in need of it.
§ Mr. Sergeant Talfourd
said, it was most painful to him on this occasion to vote against the opinion of his hon. and learned Friend, the Attorney-general, and against those who formed the greater part of the majority on this question, and in whose political opinions he was in the habit of concurring, but he felt that he should be wanting in his duty to his constituents and to the profession to which he belonged if he allowed a vote upon this most great and mighty question to pass without saying a few words. He had been deterred hitherto from taking any part in these debates, partly from the unaffected reluctance he always had to intrude him-himself on the indulgence of the House, and partly from feeling the justice of the complaint which had fallen from a noble Lord on the opposite side of the House, with respect to the technical habits of the profession to which he belonged being likely rather to embarrass than assist the judgment of others. But the question had now arrived at a point at which profess- 435 sional technicalities, and the quirks and quibbles of the law could no longer impede the view. They had got far beyond the period in which any professional habits of professional men could be indulged. They had arrived at a period of higher and deeper considerations—of more momentous and awful prospects—in the presence of which al professional prepossessions must fade away. They were arrived at a point of a great and stupendous crisis. When he felt that in that House it had been his lot to hear to-night his hon. and learned Friend, the Attorney-general, for whose earnestness and singleness of mind, as well as learning upon this matter, he had the greatest respect and veneration; but when he had heard the Attorney-general to-night arraigning the judges of the land—not in respect of the authority they had usurped, but in respect of the judgment he himself had invited them to pronounce—for not having decided with him after an argument of three days, unexampled in the profession for legal knowledge, for fertility of illustration, and for richness of research—when he had heard the noble Lord whom he saw opposite yesterday arraigning those judges, almost in similar terms; and when—which he confessed pained him most of all—when he heard the great leader of the great Conservative party of this country, whose life had been devoted to the earnest maintenance of their ancient institutions—when he heard that right hon. Gentleman most delicately, most kindly, and most respectfully, he granted, taking judgment after judgment of those venerable judges, and commenting upon them in the kindest spirit, so far as the right hon. Baronet's intentions were concerned; but the very subjecting of them to that commentary must, as it seemed to him, at least, show the tremendous nature of the contest in which they were engaged—when such powers, such feelings, such genius, and such associations, were directly arrayed against the majesty of the law, and the judges of the Queen's Bench, he felt justified in saying that they were arrived at the point of a great and stupendous crisis. The question upon which they were now conflicting was no less than this, whether the serene majesty of the law as it had been recognized for ages in its various departments, was to be maintained, or whether the judgment of a fluctuating popular assembly, in perhaps a nicely 436 balanced state of parties, liable to all the tumults and passions which belong to public debate—the members of which were not bound to be present at the discussions—nay, who decided oftentimes, as he believed they had decided upon the question of commitment in this case, without having heard the whole of the evidence or the debates; whether the one or the other was the power which was to prevail. The question was no less than this; and when extreme cases were put in reference to that question, and he was asked what the House of Commons would do if the judges were to decide this or that, his answer was, that if the privileges of the House of Commons were really part and parcel of the law of England, although one court might have erroneously decided against them, the court, in the highest resort, they were bound to believe, would decide in their favour. If they were to judge by the language that had prevailed in these debates, one would suppose that we were living in a state in which each court was in one perpetual struggle with the rest; in which, as in olden times, the Court of Queen's Bench was trying to encroach on the jurisdiction of the Court of Common Pleas, and the Court of Chancery on both. But that was not the position of things now. There was no contest now between the Court of Chancery and the courts of law; nor between the House of Commons and the laws of England. If the judgment of the Queen's Bench were indeed wrong, and in the judgment of the great body of the profession wrong, why did not the House of Commons in this case follow out the course which they were invited to pursue? If the other judges of the land really differed from that judgment, why did not the House, by writ of error, take the question into the Exchequer Chamber, and have the judgment reviewed? Why did they pause, and say they would take the judgment of the four judges of the Court of Queen's Bench, and now, because that judgment was unsatisfactory, declare they would not proceed any further? He would not, at this period of the debate, when the arguments were nearly exhausted, go over any of the grounds touched upon by those who had preceded him; he would simply apply those considerations he had ventured to throw out to the particular question now before the House, The question of privi- 437 lege, as far as the majority of that House could decide it, roust be taken for the present as decided. They had determined that a breach of privilege had been committed; and the question was, were they now to use it with respect to the particular party now to be called to the bar? He had not heard the Attorney-general give any reason why this individual was singled out in preference to the under-sheriff, the counsel, and the judges of the Court of Queen's Bench, who had acted with a knowledge of the fact that the House had declared the action to be a breach of privilege. He could well conceive that there were cases where a breach of privilege might be more quickly visited on the attorney than on the party. He could conceive a case in which an attorney might bring some eighty actions against as many newspaper-vendors, by which it might be thought the attorney brought into question the privileges of the House; and where the House could not get hold of the plaintiff, or, getting hold of him, he might not be sufficiently known to the public to make an example of. But here they had got the plaintiff, and had confined him, and whom they and the public knew full well:Great let me call him, for he conquered us."This being the case, was it worthy of the House to visit the attorney with punishment for merely exercising his profession? Passing by the judges and the counsel (for they would pass them by), they were seeking to visit the humble attorney with their displeasure; letting I dare not, wait upon I would. He prayed the House to consider whether they were establishing their own character, or a safe precedent, by exercising that which was, beyond all doubt, a despotic power. When they were about to exercise the power which, by their second resolution, they had determined did belong to them, and which he would venture to affirm contained within itself every ingredient which the most despotic power of Tartary or of Turkey could produce—he would ask them whether it ever came across their minds to reflect that while the despotism of one man was capable of being softened and subdued by the circumstance that he was human—that he had his feelings, his relentings, his sympathies; while they, the House of Commons, would show a combined body, coming filled with all 438 their legal points and high notions of privilege, but leaving their human hearts behind them, they were setting a precedent now which in aftertimes future Houses of Commons might follow out in a worse spirit? The right hon. Baronet the Member forTamworth—who delivered a speech which certainly, if anything could have convinced him of the correctness of the right hon. Baronet's views, would have convinced him—in rather dim and indistinct terms intimated his apprehension that they of the present day had degenerated somewhat from their great predecessors, whose powers and genius had illustrated and shed a lustre on the debates held within those walls. He would pray the right hon. Gentleman to recollect, that if they had degenerated from their predecessors, they still adhered to the principles of the constitution; and he would ask whether it did not come across his mind that at a future and a distant day, what they were now doing might lead to the realization of that conflict and those difficulties and dangers of which he himself had spoken? Did not the right hon. Baronet see the possibility of a future House of Commons being capable of abusing the precedent they had now set up, and of perverting the resolution they had passed to the worst and most destestable purposes? The right hon. Baronet had said that he saw in the vista that they could not stop short of legislation; that he foresaw that the conflicts and the difficulties and the dangers that must ensue would lead to that result. Why not try legislation before those difficulties and dangers came? The right hon. Baronet might be assured that "to that complexion they must come at last." He would only implore the right hon. Gentleman, and those who supported him, to pause and consider whether it would not be well, before they engaged in this deep and desperate conflict with the authorities of the law, before they sought to render their sanctity cheap in the common eye, which, in the experience of his hon. and learned Friend the Attorney-general, they all knew how dear and how valuable it now was; before they did that, ought they not to anticipate all those results, and begin that legislation in which the right hon. Baronet plainly saw they must end? If the right hon. Baronet's worst fears should prevail—if it should be that there should be a chasm where the House of Commons once stood—his earn- 439 est belief was, that those who should write its history would not record its fall from too light or too gentle an exercise of its privileges, but rather from too violent an assertion of them in defiance of the great body of the people who sent them there—in defiance of that public opinion to which they all appealed—in defiance of that public on whose behalf those privileges were claimed—and in defiance of every feeling, every reasonable, and every thinking man, who believed that they were going too far in seeking to punish those who had committed no offence, either against God, or towards man.
§ Sir Robert Peel
assured the hon. and learned Gentleman that it was not inconsistent with the sincere respect which he entertained for his character or talent, if he suggested to him that the more appropriate occasion for the speech which he had just delivered would have been on the night preceding the last, and immediately after he had made his speech. The question now being exclusively whether Thomas Howard should be called in, the hon. and learned Gentleman had taken this opportunity of answering a speech which had been made on a night when he himself was present listening to the debate, and when the debate did not conclude at an hour which precluded the House from listening to any answer; but two days afterwards the hon. and learned Gentleman made a speech, and inflicted on the House the painful task of listening again to him. For himself he deemed it consistent with the principles which he had ever professed, if he attempted to maintain for all the great institutions of the state the privileges which they possessed. The question here was whether the House of Commons was entitled to a privilege which he believed to be essential to the due performance of its functions; and he believed that he was adopting the true Conservative policy if, under the impression that the claim was well founded, he attempted to maintain those privileges. When had he shrunk from his duty when any attempt had been made by the House of Commons to encroach on the privileges of other bodies? When such attempts had been made upon the privileges of the House of Lords, or the privileges of the Crown, he had ever stood forward boldly to resist the attempts, That course he had pursued, that course he would continue, if he believed that any attempt were to be made to rob the House 440 of Commons of any privileges to which he conscientiously believed they were entitled from long prescription, and which were required by necessity. In this case, as in the other cases, he had acted upon the same principles; he had attempted stare super vias antiquas; and he had attempted the vindication of the privileges of the House. It might be said that he had alleged the tyrant's plea—necessity. He had quoted the opinion of Lord Denman. Lord Denman had said, that if the privilege were necessary, it could be justified; and if he could show that this privilege were necessary for the energetic performance of their duty as a House of Commons, Lord Denman had granted that the House of Commons possessed it. He had then attempted to show, taking it for granted that what Lord Denman had stated was true, what he conceived to be strict logical deduction, first, that this privilege was essential to the energetic performance of their duty, therefore that they were in possession of it, and that they had no guarantee for its continuance unless the House could vindicate its privilege itself; and, in taking this course, he thought that he was only giving effect to the resolutions to which the House of Commons had itself come. Was the hon. and learned Gentleman aware of the resolution to which the House of Commons had come? If the House of Commons had changed their opinion, if they had altered their views, let them state it; let them rescind their resolution, but let not the hon. and learned Gentleman accuse him of absurdity, if he presumed that resolutions carried by a majority of 120 to 4, and which were unaltered, continued to be the opinion of the House. On the 1st of August last the House of Commons had had read to them the resolutions of 1837. [Mr. Sergeant Talfourd: I was not here.] That was what he complained of. Here was a great constitutional question to determine, a difficult point of law, in which the House was to come to an opinion as best it could, and till the House made an alteration in its resolutions, which embodied its opinions, he presumed that to that opinion they adhered. But the two resolutions of 1837 were read. Sir Frederick Pollock, Sir William Follett, the Attorney-General, the late Solicitor-General, indeed all the great legal authorities in the House, were placed on the committee selected to con- 441 sider this great constitutional question; that committee sat to consider the question, and concurred in those resolutions. Was there one dissentient voice? There was one, for whose character he (Sir R. Peel) entertained the highest respect; but he was not a lawyer—it was his hon. and learned Friend, the Member for the University of Oxford. The House confirmed the resolutions by a large majority, and in 1839 it acted on the precedent of 1837. There had been ample time for revision. Why had not the hon. and learned Gentleman warned them of their danger? Why, when he saw that the House could not maintain the privileges, why did he not ask them to rescind the resolutions—why did he not give them timely warning that they could not be maintained? Would it not have been a wiser course to have at that time given this warning, rather than to say, when they were called upon to adhere to the engagements which had been made, and when they were called upon to act upon their own resolutions, that they should shrink from their duties? Two years had passed, and there then came in 1839, after the House had had ample time for deliberation, and to determine upon its resolutions, a person who wrote to say that he intended to bring an action against the printer of the House of Commons for the publication of a libel. The resolutions of 1837 were read. The petition of the Messrs. Hansard was read, and the House of Commons resolved that Messrs. Hansard, in printing and publishing a certain report and minutes of evidence, acted under the orders of the House, and that "to bring, or assist in bringing, any action against them for such publication, would be a breach of the privileges of the House;" and it further resolved "That Messrs. Hansard be directed not to answer the letter of Charles Shaw mentioned in their petition, and not to take any step towards defending the action with which they were threatened in the said letter." The House passed these resolutions by a majority of 120 to four. He then looked at the minority. They were persons who, in their individual capacities, were entitled to every consideration; but why—after maintaining the two actions when the House was menaced by an action from Mr. Polack—why did not some legal authority join immediately in resisting the course that was proposed. How did it 442 happen, after all that had passed—after the action had been decided against them without pleading; after, in the second action, they had pleaded and failed, when the question was what course the House should take in the third action, that the House of Commons determined that it would be a breach of privilege to institute such an action, and that they afterwards resolved that Messrs. Hansard should not plead to it? How did it happen that the four men in the minority against those resolutions were only Sir Thomas Acland, Mr. Benjamin D'Israeli, Mr. Thomas Duncombe, and Mr. Wood, the Member for Middlesex? Not one legal authority in the House of Commons joined in the vote against those resolutions. He must say that he thought it rather hard that the hon. and learned Gentleman should attack him, an unprofessional man, for acting as he had done on what seemed to him to be the privileges of the House, when he had reason to believe that he had with him the almost unanimous opinion of the House, as tested by that vote. He thought that it would have been the more proper and the juster course if the hon. and learned Gentleman had attended upon that occasion, and then given the solemn warning which he had now offered. He confessed to the hon. and learned Gentleman, notwithstanding the eloquence of his observations, that he differed from the hon. and learned Gentleman. He confessed that the tendency of that speech did not diminish his apprehension of the consequences which would have arisen from an immediate acquiescence in the right which was claimed by the courts of law; for the hon. and learned Gentleman had censured him, not for any disrespectful allusion to the judges, but because he had in the kindest—in the most respectful, and in the most delicate manner, ventured to give some opinion on the decision the judges had given—the kindest the most respectful, and the most delicate manner; and yet such was to be the Parliamentary subserviency to the courts of law, that even in that kind and respectful, and delicate manner, the questioning of the judgment could not be permitted. What did he question? Had he not said, in the first instance, with regard to any observations he might make on the judges, that he would not be disrespectful? Did he not say, however strong were his feel- 443 ings—did he not make a preliminary apology—that if he said one disrespectful word, he would regret it? Why did he refer to their judgment? To show that acquiescence, on the present occasion, would not ensure absence of collision; for although the judges had admitted that they had a right to publish their proceedings for the use of the Members of the House, yet, if the Members disclosed any one of the papers which was thus entrusted to them, that an action might be maintained against them. He had quoted the opinion of Mr. Justice Littledale, and of Mr. Justice Patteson; the opinion of Mr. Justice Littledale, to show that although a Member might be entitled to papers, yet that he had no right to circulate any defamatory matter; and of Mr. Justice Patteson, to show that the only means left to the Member to prevent an action was to burn the papers, and he had done so to point out the extent and the character of he claim that was made. Did he not attempt to show that if a Member had voted 20,000,000l. for the abolition of slavery, an action might be brought against such Member if he attempted to disclose the grounds on which such grant was made? Might he not also have stated that the House of Lords were liable to action for the transmission of their own papers to the British Museum. If this doctrine were founded in law, a Member would be unsafe in almost every act that he performed. Was it not legitimate to shew the courts of law that the House was the exclusive judge of its own privileges, and that if the claim of jurisdiction over their privileges, which was now first brought forward, were allowed, it would not extend alone to the Court of Queen's Bench, but that every court in the kingdom that had competent jurisdiction to maintain an action for libel had the same power as the Court of Queen's Bench. Therefore, if the law, as it was laid down by the Court of Queen's Bench were correct, every Member that justified his vote of 20,000,000l. for the abolition of slavery to his constituents, and who explained to them the grounds of that vote, would be liable lo action or indictment, not only in the Court of Queen's Bench, but in every court of inferior jurisdiction that was competent to entertain an action or indictment. Was not that the law as it was laid down? Was that not the principle contended for by the judges? Did he not say that? Did he not say, 444 that if the Queen's Bench entertained the question, other courts might? And did not that court say that a publication to Members might be privileged, but that they were not privileged to make any communication of the contents to their constituents? They did. He got that from the hon. and learned Gentleman. If that were so, then if Parliament were not sitting, and a Member should communicate to his constituents the evidence which led him to vote twenty millions for the abolition of slavery, that Member, Parliament not being sitting, would be liable to an action for libel in every borough court and in every court of quarter session in the kingdom? Did this not follow from the decision of the judges? If it did, would not the hon. and learned Gentleman admit the propriety of the privilege for the right performance of the functions of the House? And, if this communication were just and proper, was not a case of necessity made out? Would the hon. and learned Gentleman say, that the House of Commons and that the Members of the House of Commons could properly discharge their functions, if they were subject to this liability of prosecution? Would the hon. and learned Gentleman tell him if the responsibility placed by the judges of the Court of Queen's Bench applied to the circulation of evidence? If so, he would take the case of Kenrick. Could not the evidence even be shown to a friend? Did the hon. and learned Gentleman admit that? If he did, the hon. and learned Gentleman admitted that the Chief Justice of the Court of Queen's Bench himself was liable to an action. If that class of publications were not privileged—if the papers against the judge Kenrick were not privileged, then an action might be brought by that judge against another judge for reflection cast upon his character. Lord Denman himself moved that that evidence be printed. At that time the practice of sale did not exist, but the matter of sale did not interfere with the right, or make any difference. Did the hon. and learned Gentleman think that it was consistent with the energetic performance of his functions as a Member of the House of Commons, when Lord Denman was asked by his constituents why he moved an address for the removal of a judge, if for the vindication of that motion he would be liable in every court of quarter sessions in the kingdom for the publication of a libel? Would not such a con- 445 sequence follow from the judgment now given? Had he not, then, reason for believing that this privilege was essential to the due performance of their functions as Members of the House of Commons, and that it would be an unjust interference with the performance of their duty to render them liable to any action or indictment for attempting to justify that performance to their constituents. Those were the points on which he wanted an answer. Those were the points he had never heard answered; and he must confess, with the utmost respect for the judges, when they told him that Members of Parliament might have the right of printing and publishing for their own use, but that they could not circulate defamatory matter without being liable to an action for libel, that if such were the law, rather than permit the authority of the House of Commmons to exist upon that foundation, he for one would abdicate his functions. He for one would not submit to the performance of his public duty, if he thought that he could not justify his conduct to his constituents, without being liable to an action in every borough court and court of quarter sessions in the kingdom. He held that that was the law as now laid down. If the hon. and learned Gentleman denied it, let him show where the authorities interfered with it. If the Members of that House were to incur that responsibility, if the Members were told they were liable to an action, it would be impossible for them to perform their duty; and he believed, that it would be better to have no popular assembly whatsoever as a constituent part of the constitution, than to have existing a popular assembly calling itself by the name of a popular assembly, and having the semblance of a popular assembly, and yet deprived of those privileges which were necessary for the performance of its duties. The whole question, in point of fact, was whether it was the law of England that a publication made by order of the Speaker of the House of Commons, and printed under the authority of the House, and printed by the printer of the House, was a privileged communication or not? Would the hon. and learned Gentleman maintain the doctrine as it was held by the judges? If not—and he must observe that he had not heard a single lawyer maintain it, although it had been maintained by his hon. Friend 446 the Member for Oxford—if there was not one lawyer who upheld it—did the hon. and learned Gentleman seriously believe that if the publication of papers for the use of Members were privileged, that the privilege of publication as regarded others could be denied? If that were so, could he be surprised at the consequences which must follow from the opinions of the judges. And he confessed that he was unwilling to trust this or any other of their privileges to any exclusive jurisdiction, or any exclusive power. He had admitted that the conduct of the sheriffs was entitled to all praise; that they had given their evidence with great candour, but nothing could be more injurious than that, in consequence of the personal conduct of individuals, however unexceptionable it might be, they should take no steps against them. No court would have the power of discharging its duty unless it discarded the first strong impulses of humanity. But if a consideration of humanity were a legitimate appeal, what appeal was there for Mr. Hansard? Suppose Mr. Hansard in addressing the Chief Justice of the Court of Queen's Bench, had said, "I am only a subordinate officer, exercising no discretion upon this matter, depending for my bread upon obedience to the orders of the House of Commons. I have received the orders of the Speaker of the House of Commons for what I have done; why do you strike at the mice and the small deer? There are, I will not say the wild beasts of the forest, but much higher authorities than myself; under their direction I have acted, they are responsible for the orders they have given; don't drag me, an unfortunate officer, to prison, don't make me responsible, but attack the Speaker of the House of Commons, and the House of Commons, under whose authority I acted, itself." What answer would the Lord Chief Justice have given, supposing Mr. Hansard had presented a petition, and said, "Do not make me liable, don't amerce me in money, don't imprison me in body, but attack the Speaker of the House of Commons?" Would not Mr. Hansard show by such a statement and such a petition that he was morally exempt from blame, and that there could be no greater hardship than to amerce him in money, or to imprison him in person? But he would have been imprisoned notwithstanding. If a return had been made by the sheriffs of 447 nulla bona, would not a certain writ, called a writ of capias ad satisfaciendum, have been immediately issued, and would not Mr. Hansard have incurred the very fate which the sheriffs have now incurred? Would not Mr. Hansard have been committed? That was what reconciled him to do an act which was most revolting to his own feelings—that was what reconciled him to the committal of an act of individual injustice, which nothing in his opinion could justify, except that it was his firm conviction that there were no other means of vindicating the House of Commons; and he assured the hon. and learned Gentleman that nothing but the intimate conviction that the vindication of their own privileges by their own authority was absolutely necessary for the maintenance of those privileges, would induce him to take this step. He confessed he did feel a difficulty after taking the step which appeared to him to be necessary, and when his opinion had undergone no change, in shrinking from the use of any and every instrument which the law and the constitution had placed in his hands. He did not deny that ultimately it might be impossible to succeed, he had never denied that the powers of the House were imperfect. Had he not said, that the courts of law would, as he had assumed, have assisted the House in its privileges? But when it had been proved, that the courts took a different view, and would take from them and not assist them in the vindication of their privileges—when he saw this, though he did not deny that their privileges and their powers under the constitution were incomplete, though he did not then deny that they might be obliged to resort ultimately to some other authority; yet, at the same time, he would not refuse to exercise any power which as he believed, the law and the constitution gave him, and it would be a consolation to him, if they should be driven to resort to legislation, that he had not lost or compromised the exercise of any less important privilege, by shrinking from his duty, or by abandoning the use of any power which he believed the constitution of the country gave to that House.
§ Mr. Darby
must again say, most unwillingly, that he was not convinced by the arguments of his right hon. Friend, nor could he reconcile his right hon. Friend's speech with his speech on the same subject delivered on the 17th of June, 1839. His right hon Friend then said,— 448It was proposed to proceed against the ministerial officer who was to be placed in this anomalous situation—that if he levied in conformity with the decision of the court, that House would commit him for a breach of its privileges; and if he obeyed that House, and did not levy, the Court of Queen's Bench would commit him for disobedience. It would be more consistent with the boldness of proceeding which had been recommended, if they held that the court and tribunal had been guilty of contempt, and to commit them if they persisted, instead of proceeding against the ministerial officer, who was bound to obey the orders and decisions of the court. It was a bad and dangerous example to set, to direct the Ministerial officer not to obey the law of the land. What was the course that the House had pursued? It submitted to the tribunal; the House had the power of stopping the proceedings at once, by telling the individual who was plaintiff in the cause, that he had no right to go to any other tribunal than that House, as it was the only judge of matters involving its privileges; and that, if he persisted, he would be committed. The House, however, allowed and instructed its officer to plead, and directed counsel to appear for him before the court. The Attorney-general appeared and argued the case for three days in the most able manner. They allowed the court to consider the case, and to believe that they submitted the matter to its decision, and that they were willing parties before it; and in confirmation of this view of the case, he would ask, how did the Attorney-general conclude his speech to the court? Why, in a manner to confirm such an opinion in the minds of the judges. The hon. and learned Gentleman concluded in these words: 'My Lords, for these reasons I pray judgment for the defendants.' It was proposed, however, that the officer who acted for the sheriff of London should be committed if he levied execution. Was this the proper step to take after the course the House had allowed to be pursued?"*He did not quote this to prove any inconsistency in his right hon. Friend, but simply as requiring, in his mind, some explanation. He was exceedingly glad that his right hon. Friend had not the conduct of the case, instead of the noble Lord, because if he had, he (Mr. Darby) and those friends who acted with him would have been in a much worse position than they now were. He did not, he repeated, rise for the purpose of exhibiting any inconsistency upon the part of his right hon. Friend, but because he conceived it to be highly important that the country should be enlightened as to the* Hansard, vol. xlviii. Third Series, p. 357.449 real opinions which his right hon. Friend entertained, and for the purpose of showing to the House that he himself had only maintained that course in respect to this subject which he had always pursued.
§ Sir R. Peel
said, that he would at once freely enter into an explanation of his conduct, if the House would accede to him the opportunity of doing so; and he thought that when he had done so the House would agree with him that there were some certain subjects upon which it was of importance that the country should be enlightened. The hon. and learned Member said that it was highly important that the country should be enlightened upon this subject. Why that was the main ground of his previous argument, and if it was necessary that a person in his position, honoured as he was by the confidence and support of a great body of Gentlemen, should declare his opinions in that House, it was still more desirable that they should be fully explained to the country at large. He was not there as the lukewarm advocate of the privileges of the House. All the vocabulary of abuse heaped upon the supporters of those privileges last night by the hon. and gallant Member for Donegal made little impression on his mind; and all he asked for now was permission to exercise the privilege of explaining his conduct, and he thought that he should convince his hon. and learned Friend, the Member for Sussex, of the danger of making imperfect quotations. The hon. and learned Member said that he did not charge him with inconsistency; but even if he had done so, he begged to assure him that that would not have altered the feelings of friendship which he entertained for him. Now, he would proceed to the speech of June 17, 1839, and he wished every hon. Gentleman who should be similarly charged would be able to give such a refutation to the allegation made against him. In June, 1839, they were discussing what they should do in the case of "Stockdale v. Hansard", the Attorney-general having pleaded to the action. He had said that his advice had not been acted upon, for that he had advocated the committal of the plaintiff in the action, and then, after having referred to the case of "Burdett v. Abbott", he went on to say,What was the course the House had pursued? It submitted to the tribunal. The House had the power of stopping the proceed- 450 ings at once by telling the individual who was plaintiff in the cause that he had no right to go to any other tribunal than that House, as it was the only judge of matters involving its privileges, and that if he persisted he would be committed for contempt. The House, however, allowed and instructed its officer to plead, and directed counsel to appear for him before the court. The Attorney-general appeared and argued the case for three days in the most able manner. They allowed the court to consider the case, and to believe that they submitted to its decision, and that they were a willing party before it; and, in confirmation of this view of the case, he would ask, how did the Attorney-general conclude his speech to the court? Why, in a manner to confirm such an opinion in the minds of the judges. The hon. and learned Gentleman concluded in these words,—'My Lords, for these reasons I pray judgment for the defendants.' It was proposed, however, that the officer who acted for the sheriff of London should be committed if he levied the execution. Was this the proper step to take after the course the House had allowed to be pursued? As regarded his opinion on the subject matter under consideration, he had no hesitation in saying—(now here was his inconsistency)—that he believed that its privileges were essential to the usefulness of Parliament, and he did not think that they could sit with honour or advantage to the country for a single evening without them. If they might be questioned in the Court of Queen's Bench, there was nothing to prevent their being questioned in every subordinate court of judicature in the empire. If they allowed it to be supposed that any court could determine on what occasions their privileges were justly exercised, they only held their privileges by sufferance, and they had better attempt to suspend the exercise of their privileges than attempt to exercise them at all."†If a similar case occurred to-morrow, he would recommend that the House should deal with it without hesitation, and determine that, as a case involving its privileges, it should not be submitted to a court of judicature. In such a case there would be a proper exercise of the authority of the House of Commons when it committed for contempt."†He could not see, then, how he was chargeable with inconsistency. He would fairly own, however, that such a question as that would have little weight with him, for he had no hesitation in declaring that he was not always to be haunted with the ghost of Hansard, and that if he saw the importance and necessity of a change in any case, not involving any great question of principle, he should have little difficulty in adopting it.* Hansard, vol. xlviii. Third Series, p. 358.† Ibid 359.
§ Mr. Godson
said, that he would now endeavour to draw back the attention of the House to the subject which was really under discussion, because the right hon. Baronet who had just sat down had said nothing at all in allusion to the case. He conceived, that the House was in possession of the real facts as concerned Mr. Howard, to whose committal it was proposed that the House should now proceed; or at least they were considering the question upon a false assumption that that person was the attorney in the case from the commencement. Such, in reality, was not the fact; for, by Mr. Hansard's petition, it appeared, that the writ was sued out by Mr. Stockdale in person, and that it was only the subsequent proceedings which were carried on by Mr. Howard. The hon. and learned Attorney-general had argued the case as if the process had been sued out by Mr. Howard, and as if he had been the person who counselled the plaintiff to bring the suit; but that was not so, and the action having been once commenced he had no option but to proceed when called upon. He was the officer of the court, and was compelled to discharge the duties imposed upon him by his situation, and if the House were to come to the decision which was proposed, they would in effect declare, that no British subject should be entitled to profit by the advice of a professional man. Had they forgotten the memorable case of the Queen of England? Was it to be inquired by the counsel in that case, whether her Majesty had committed treason or not, before they gave her their advice? No such proposition could for one moment be maintained; and yet, according to the argument now employed, it was the duty of this attorney of the Court of Queen's Bench to inquire whether his client had committed a breach of the privileges of that House. The situation of attorneys and counsel would be the same; but the maintenance of the independence of the bar was necessary for the safety of the lives and of the liberties o her Majesty's subjects. The House could not interfere with the independence of the bar, without at the same time touching the power of the judges. The hon. and learned Attorney-general had declared his want of confidence in the five judges of the Court of Queen's Bench, and the same court had been spoken against by the Leader of the Liberal party, and by the 452 Leader of the Tory party; but let him remind the House, that on Saturday next those five judges might form a part of a majority, who should decide that the point of law reserved in favour of the three unfortunate men who were convicted at Monmouth was untenable, and who might consign those unhappy individuals to the scaffold as traitors. He traced out this fact only as illustrative of the position of those who had voted in the majorities on this occasion. What was it that they had said of Mr. Howard? They admitted that he had the authority of the five judges of the Court of Queen's Bench for what he had done, and then they proposed to commit him because he had acted upon that authority. They said, in fact, it shall be right for the judges to be wrong, but if the attorney is of the same opinion we will send him to prison.
§ Mr. Bernal
said, that with great deference to the opinion of the hon. and learned Gentleman who had last spoken, he had touched upon no arguments which had any very great bearing upon this subject. What the judges might do, or what they might be likely to do, in the case of Mr. Frost, could have very little to do with this motion, and he imagined, that it required all the ingenuity of the hon. and learned Gentleman to introduce that point in the observations which he had addressed to the House. The hon. Gentleman had proceeded at too rapid a gallop, for he said, that the question now before the House was that of committing Mr. Howard; but he begged to remind him, that that was not really the subject under discussion; but they were now inquiring, only whether that person should be called to the bar of that House. He said, that it did not follow as a necessary consequence that he would be committed; for circumstances might arise in reference to him which would render further inquiry necessary. He begged to say, that at this moment, after the long discussion which had taken place with respect to this original transaction, and its consequences, it was now too late to enter into a general argument. He had an opinion upon this subject, having been a Member of the committeee which had sat up stairs; but it was of little importance that he should now state what that opinion was. He had endeavoured to take a mitigated view of the question, and he lamented the necessity of adopting that course which he 453 had taken in the votes which he had given; but he was not to be deterred, by any idea of popular feeling or clamour, from pursuing his own line of conduct. What was it to him, if, as a Member of the British Parliament, he was satisfied that for the advantage of the country the privileges of that House must be maintained in the manner pointed out? It was a consequence which flowed from the circumstances of the case. They had no other course to pursue than that which they had adopted; for, if they were determined to support their privileges, they must proceed in the line which they had taken. The hon. and learned Member for Ripon pointed out as a remedy for the evil which existed that a declaratory Bill should be passed, and he had himself, while attending the committee up stairs, supported a similar proposition, but it was too late now to adopt any such measure. They had taken one course, which they must carry out, unless they desired to manifest cowardice, or something worse, professing a belief that they possessed privileges which they could not sustain. He would not detain the House, but he might be permitted to say, that he had heard no Member attempt to assert that this was a privilege which was not worthy to be maintained. He contended that it was a privilege which was most essential and most valuable, and he would put a popular illustration of its importance to the House. In the case of a Member representing any large borough, supposing a publication took place reflecting upon some member of the municipal corporation, was it not exceedingly important that the Member should have the opportunity of communicating with the person libelled, and of sending him the papers? He conceived that on that ground, if on that only, the House would at once admit the importance and the necessity of maintaining this privilege. With regard to the appearance of Mr. Howard at the bar of the House, he considered that it was most important that he should be called in, in order that some inquiry might take place as to his real position. It might turn out that the employment of his name was unauthorised by him; that its signature to the papers in the cause was a forgery; but at the same time that he suggested this possibility, he did not hesitate to express his opinion, that if no such ground of excuse arose, it would be the duty of the House at once to proceed to commit 454 him as having been guilty of a breach of the privileges of the House. They could not affect Mr. Stockdale, unless they operated on the legal instrument whom he employed; and if they excused Mr. Howard in this case, that excuse would be a direct warrant to any other attorney whom Mr. Stockdale might at any future time employ. With regard to the observations which had been thrown out as to proceeding against the judges, he for one was ready to declare that he should be extremely sorry to take any such step: but if he found that privileges of this importance could only be maintained by the adoption of that ulterior course, he was the last man who would shrink from it. He knew nothing of the learned judges, except in their judicial capacity—he knew them to be men of intelligence and experience; but when he had heard that no lawyer had attempted to defend the judgment which they had given, he could not hesitate as to the proceedings which, in his opinion, ought to be taken. He had been sorry to hear terms applied to their proceedings, by designating them as arbitrary, tyrannical, unjust, and oppressive, and which evidently were only used with the view of exciting the public clamour. Hon. Gentlemen opposite talked of public opinion being against them; but was the mode of proceeding that had been adopted by them here pursued with the view of getting up public opinion? They well knew thatComing events cast their shadows before;and could hon. Members opposite say that by their conduct and language they had not endeavoured to point the barb of public opinion against the majority of that House, for the course they had considered it to be their duty to pursue? An hon. Friend of his who had addressed the House justly observed, that such terms as tyrannical, unjust, and oppressive, which had been so freely applied during the present debate, added nothing to the argument, and was only calculated to excite angry feelings. It should be recollected that public opinion would reflect on their proceedings, and he was perfectly willing to rely on the shrewdness and judgment and intelligence which existed out of doors, and which would separate the chaff from the wheat, and by which the true state of the case would be regarded quite independent of the fallacious opinion that 455 they had endeavoured to excite against that side of the House. He trusted that it was too late in the day for any party to be successful in such an attempt, and he had little doubt as to the result of public opinion when opportunity for reflection had been afforded. He would not refer to any precedents, as they had already been drawn out to an elaborate and perhaps useless extent, but he trusted that it would be allowed that, in the preservation of their privileges, every man was equally interested. He was sure that every Member in that House, whatever might be his political opinion, was anxious for the good of the country; and he entreated those who were sent there by large constituencies not to be led away from pursuing that course which their judgment dictated by any fears of public opinion. He felt convinced that the public out of doors on reflection would become enlightened, and if that House acted honestly and conscientiously, and at the same time with firmness, he was sure that they would not sink in public estimation; but if they should fail in this respect, they would have nothing-to regret in consequence of the course they had felt it their duty to take.
felt, that some apology was necessary for his again rising to address the House after he had occupied its time at such length during the present debates. He now repeated what he said on the previous occasion, and he did so calmly and coolly, and after much reflection, that the question now at issue was nothing more nor less than whether the people of this country were to live under the law as established by the Legislature, or under the arbitrary authority of that House. The question was not now as to the right of publication. He would assume, for the purposes of argument, that the House possessed the right and privilege of publication, and had the power of vindicating these privileges, not by legal proceedings, not by law, but by the strong arm of power. He would assume that this was the case, and he would ask them whether the course that was now proposed was consistent with their own notions of law and privilege; and whether they thought that their proceedings were likely to lead to a successful issue. He was perfectly satisfied that the noble Lord, and those who took the same view of the case with him, could have no other object than the performance of what they considered to be 456 their duty to the country, but at the same time, he claimed the right for himself and others of exercising and expressing their judgments on these proceedings. From the year 1837, when the resolutions were submitted to the House on this subject, until the present time, he had constantly felt the difficulties in which they were involved and was satisfied that they would greatly increase if their proceedings were persisted in. He would not go into the question as to the soundness of the judgment of the Court of Queen's Bench, but when they were told that these was no lawyer who maintained the accuracy of the judgment of the Court of Queen's Bench he could not but feel surprised. That assertion so far from being accurate, was directly the reverse of accurate, so far as regarded the question they had to deal with now. The point involved in the judgment resolved itself into two parts. The first question was, as to whether the Court of Queen's Bench had the right of inquiring or examining into a matter involving questions of privilege arising in an action brought before it by an individual against an officer of that House. The other question was—assuming that the Court of Queen's Bench had the right of entering upon the subject—did it come to a right conclusion on the question, whether these publications were to be considered protected and privileged when published, because they were published by the authority of the House? These were totally and entirely distinct questions. These were the questions submitted to the Court of Queen's Bench, and they came to a decision on both. The decision of the judges of that court was, that they had the right of inquiry or examination, as stated in the first question; and, secondly, that these publications were not protected. With respect to the first question, as to the light of examining, in the case of privilege, in the Court of Queen's Bench, ninety-nine out of every hundred barristers in Westminster-hall had concurred in the judgment of the Court of Queen's Bench. He did not believe, that there was any material difference of opinion on this subject. He believed, that his hon. and learned Friend, the Member for Chester, who concurred with his learned Friends and himself in opposing the resolutions of 1837 agreed in this view of the case. The other question, however, was of a very different nature, and whether the Queen's Bench were right or wrong was a matter of very considerable doubt on the part of many members of the profession. 457 He was not prepared to say on which side the preponderance lay on this question; but supposing, even, that Westminster-hall was unanimous in opinion against the decision of the Court of Queen's Bench on the second point, it would not in the slightest degree justify the course the House was now pursuing; for you would be as much mistaken and in error supposing the judgment to be erroneous as supposing it to be unimpeachable. He expressed no opinion upon the point, but he protested against its being assumed that those who abstained from doing so dissented from the judgment. It was sufficient to say that while that judgment remained un-appealed from, it settled the law. If the House were dissatisfied they should have appealed, and many persons were of opinion that if the proceeding had been carried by writ of error into the Exchequer before the rest of the judges and to the House of Lords, a different result might have been arrived at. And if this was a fair statement, was the course which was now proposed consistent with, the object of maintaining the privileges of the House. He implored them to consider what they were doing, and in what position the case now stood, and in what position the House stands. Hon. Gentlemen opposite argued, amid the cheers of the other side, that the right of publication was essential to their proceedings. Assuming this to be so, he begged them to consider that by the course they were pursuing, they were dragging that right into the utmost peril, and dragging also their other privileges after it. In the present action the question as to the right of publication had never been raised in any form whatever. The case at law at the present time stood thus: an action had been brought, in which a court of competent jurisdiction pronounced an opinion, and the House acquiesced in that opinion: it brought no writ of error on that decision, did not carry the case to the House of Lords, but paid the damages that were awarded. A similar action was afterwards brought, the House suffered judgment to go by default, and refused permission to its officer to appear or plead to the action. The judges had no opportunity of considering whether or not this case differed in any respect from the last, or whether the decision in the last case were right or wrong. As the cause came before them they did not know what was in the publication: all that they could know was, that a certain action had been 458 brought, and the defendant admitted the facts, and by his conduct allowed that he had committed the wrong alleged against him by the plaintiff, and a jury had been called to estimate the amount of injury, which they stated to be 600l. The question was, whether the ministerial officer of the court of justice, in putting in force this writ, which he was directed to enforce by the court, had committed a breach of privilege of Parliament, and whether the House were justified in making an order against that officer, while the cause was proceeding in the court of justice? Pending, however, these proceedings, the House issued that order and committed the sheriffs for obeying the order of the court, of which they were the sworn officers. Was that consistent with law, or was it not? The House attempted to stay the proceedings that took place, and having attempted to stay them in vain, it now proposed to commit the attorney to prison who carried them on, and who was also merely an officer of the court. Was that a portion of the privileges of Parliament, and was it consistent either with the form or substance of justice to take such a course. He had asked a few days ago, hon. Gentlemen opposite to point out any case since that of White v. Ashby, in which the House had issued orders to stay a suit at law between individuals. Had any case of the kind been produced—had a single case been produced since the case that he had just mentioned of that House attempting to stay proceedings between individuals in a court of justice. Was it essential, then, that they should maintain such authority, or was there anything to justify their adopting any proceeding of the kind? An analogy had been drawn between the proceedings pursued in this case, and some supposed mode of proceeding in the courts. If he did not deem it essential to the argument he would not trouble the House on this point; but it was most important that whatever they did in this matter they should have sufficient reasons to justify the steps they took, and not rest on any false analogy, because the case could not stop where it was. The House should recollect that the grounds and reasons on which they proceeded would be strictly examined and sifted, and if the case was not extremely strong it would be regarded as a gross infraction of the liberty of the subject. It must ultimately be brought under discussion 459 in another place, where, whatever was most profound in law, powerful in eloquence, and acute in intellect, would be employed in sifting the grounds of the proceeding, and the reasons on which the House acted in committing these parties. He would therefore put it to the House whether, where they found there was no precedent for the course they proposed to pursue, they could avail themselves of a supposed analogy which referred to the proceedings of a court of justice? The analogy was one with which he ought to be familiar, as it had reference to certain proceedings in the Court of Chancery. They were told that what was done by the House in this case was only what the Court of Chancery was accustomed to do, and that it was common for that Court to issue writs to suspend proceedings, and that these writs must be obeyed on pain of contempt; and, by analogy, the sheriffs should obey the House when it issued a writ of suspension. Such was the case referred to by the noble Lord and his hon. and learned Friend the Attorney-general, who both contended that the Court of Chancery could stop writs issued by other courts which interfered with the proceedings before them; and they asked, was this House less than the Court of Chancery? and had it less power to issue similar writs? When the noble Lord came to understand this matter—and it was no reflection upon him that he did not—he was sure that the noble Lord would not persist on this supposed analogy, which, in fact, had nothing to do with the subject. He contended, first, that this House had no authority to make any order in any cause in any Court of Justice; and he contended, in the next place, that the sheriff's, being bound by oath to obey the Queen's writ, could not refuse obedience to a writ by reason of an order of the House, which had nothing to do with his oath, and which he was not sworn to obey. He had been told that the Court of Chancery issued writs to the sheriff's to suspend other writs from other courts, and that the sheriffs were bound to obey the former; and he was asked how he could reconcile this with the assertion that the sheriffs were bound in all cases to obey the writs in their possession. The noble Lord supposed, that a writ of injunction was issued by the Court of Chancery to restrain a violation of its privileges, and that the Court of Chancery being superior to a court of law, its orders were obeyed. But this view was founded in an entire misapprehension of the subject, 460 The injunction was of a very different nature to what the noble Lord supposed. The Court of Chancery had no superiority over the Court of Queen's Bench. They were both courts with different functions administering different portions of the law; they each acted upon certain rules, and each was independent of the other. All that the Court of Chancery did when it interfered with the proceedings in any court of law, with the view of suspending or delaying them, was not in any way to constrain the judges of that court, or to issue orders to the sheriff contrary to those he received from the court of law, but it issued an attachment on the conscience of the individual suing at law, directing such individual not to proceed with his action under the then circumstances. But was this an interference with the sheriff, and ordering him not to enforce the writs that he received from the court of law? Certainly not; the writ or order of the Court of Chancery was directed to the party suing in the court of law. This writ, or any other writ, that was issued by the Court of Chancery, was the Queen's writ as much as that issued by the Court of Queen's Bench. The writ was not that of the Court of Queen's Bench or of its judges, nor was that of the Court of Chancery that of the Lord Chancellor, or any other equity judge. It was the Queen sitting in each of these courts, and the judges were the acting advisers of her in their separate courts, and the writs that were issued were those of the Queen, and the sheriff was bound to execute them, or suspend their execution according to the exigency of the last writ. In each case, the sheriffs were only obeying the orders which were issued by her Majesty; and the House must not suppose that the mandates which it issued were equivalent to the Queen's writs. When the House issued its mandates and the sheriffs disobeyed them, could it be said that they disobeyed the Queen's writ? The sheriff was sworn to obey the Queen's writs, was he sworn to obey the writ or order of the House? On what grounds were these writs issued by the Court of Chancery? Because it was a court of justice, acknowledged by the law of the land, and administering the most important judicial functions. But was that House a court of justice? It was certainly a court for some purposes, though he did not precisely know for what. But it was not a Court of Law 461 or of Equity. At all events it was not a Court of Justice. All its forms and proceedings was in violation of the first principles of justice as understood in Westminster Hall. In a court of justice no evidence could be received but on oath; and when he heard it argued in that House, that it possessed every power and privilege essential for the discharge of the functions entrusted to them, he should have thought part of these powers would be an inherent jurisdiction, and part the power to administer an oath. If it was necessary to publish the truth and therefore they possessed an inherent power of publication, it should seem to be necessary that they should be able to ascertain the truth, and that they therefore possessed an inherent power of examining witnesses upon oath. A court of justice compels no man to criminate himself. The House does the reverse. A court of justice adheres to certain rules of evidence. That House did not. A court of justice allowed parties to be heard in their defence before it condemned or committed them; but the House refused to do so. It was proposed to commit the attorney. Did hon. Gentlemen believe that by doing so, they would prevent him from practising in his profession? Even while in the custody of the sergeant at arms he would have his clerks still in action, and there was nothing to prevent him proceeding with other actions like the present. Again, although Mr. Howard might be in confinement, they could not prevent him, if he thought proper, from instituting further proceedings on his own account. The only way that they could stop Mr. Howard was by striking him off the rolls; but he did not believe that they could induce the court to do any thing of the kind. He did not believe that it would deter any portion of the profession from adopting a similar proceeding. The House had heard the speech of an hon. Friend of his, who was at the head of this branch of the profession, who stated that so far from the proceedings of the House deterring other attorneys from proceeding, it would instigate hundreds to similar proceedings. But could the House stop with the attorneys? Would it not proceed to deal with the counsel and judges? Hundreds of barristers were ready to take up similar proceedings to those which had been referred to. Look even to the report of what had occurred that day, and it would appear that 462 the counsel in the cause expressed his opinion most strongly on the alleged privileges of the House, and set them at defiance. If, therefore, the House was determined to persist, it must enlarge the prison cell of the House of Commons; and he regretted that it had begun this fatal contest. In addition to this feeling in the profession they were exciting a spirit amongst the middle classes on this subject which they never could overcome. It was now proposed to commit the attorney, who had not done more than his duty. In the first action Mr. Stockdale sued as a pauper, and this attorney and counsel were assigned to him by the court, who could not refuse to act when ordered by the court; for if the attorney had refused, the court would have committed him. He defied them to search Westminster Hall and find a barrister who would refuse to move for a writ of habeas corpus for any of those persons who were committed by the House. He was convinced that Westminster Hall would not furnish such a man. If there was any doubt as to the opinion of the bar on this subject, it would soon be removed, as he had reason to believe that in the course of a few days a petition would be presented to the House on the subject of the present proceedings, signed by a greater number of barristers than ever affixed their names to any petition to that House. He believed also that the deepest feeling had been excited on this subject throughout the country; this was particularly the case in the city, where the strongest manifestations had been shown at the injustice of the course pursued by the House. Men of the calmest minds had felt themselves strongly excited by the late extraordinary interference with the course of justice. He was sure if his hon. Friend the Member for Wells, who appeared to dissent from his opinion, heard the names of some of the persons to whom he alluded, be would cease to have any doubts on the subject. For his own part, he had never seen more excitement in the court to which he belonged than he bad within the last few days at the proceedings of that House; even the proverbial calmness, stillness, and dulness of the Court of Chancery had been roused. He begged hon. Members not to suppose that these proceedings and discussions were got up by noisy demagogues or disappointed and discontented patriots, with the view of setting themselves up against the House of Commons. He could assure the House that if the power of punishment 463 that the House possessed was one thousand-fold greater than it was,—they would not deter a single advocate from taking up this subject again when called upon to do so. Under these circumstances would the House persist in committing this attorney? If they did they would not stop future proceedings of a similar character, and he put it to any hon. Member whether he thought that this was really likely to be the case, with the state of feeling existing in the profession which he had described? He asked whether, on every occasion, in all the conflicts between the law of the land as declared by the judges, and that House, that House had not always been worsted. If they looked into the history of this country since the Revolution, they would find no instance to the contrary. The people had always viewed this arbitrary power called Privilege with disgust. This was the case even before the Revolution. Let them look to the famous case of the Petitioners and Abhorrers as described by Ralph, an historian, who, as was justly said of him by Mr. Fox, was much less read than he deserved to be. If hon. Gentlemen looked at the journals of the House for that period they would see that, in order to get out of the difficulties in which it had involved itself, the House was obliged to resort to the expedient of entering a direct falsehood on its journals. It entered upon the journals that Stowell, one of the parties who had been summoned to attend at the bar of the House, being ill, was allowed, three weeks for the recovery of his health; whereas, the fact was, that he set the House at defiance, and refused to attend at all, and the popular feeling was so strongly against Privilege, that the House was afraid or unable to compel his attendance. If the House committed all these persons, how long did it propose to retain them in custody? How long did it propose to keep the sheriffs in prison? Did it suppose that the sheriff's being in custody would prevent Mr. Stockdale from receiving his money? No such thing. If the amount of damages had not already been paid over to that person, it would be, or if this act was not the object of the House, what did it propose? Observe the case of the sheriffs, as it stood before the public. The House had committed them to the custody of the sergeant-at-arms; he trusted that they had not been subjected to the further indignity of being incarcerated in the same cell, of being obliged to associate with that miserable man Stock dale, But why put them under lock and 464 key at all? Why subject them to this punishment? It could only be considered as a vindictive proceeding; it could not operate as a prevention, for the act was done: yet here were they kept in prison, and the whole exercise of their duties as far as it depended on them suspended, and for what? Because they had done what every Gentleman in the House admitted, that he, as a man of honour, and as a man of conscientious feelings, standing in their situation would himself have done; and he would ask the noble Lord, and every one of those Gentlemen who concurred in the propositions of the noble Lord, whether, if they entertained the sense of their oath, which the sheriffs had declared they entertained—if they had the same sense of their duty which the sheriffs conscientiously avowed—he would ask whether the noble Lord and his supporters would get up and state that in the situation of the sheriffs they would act otherwise than the sheriffs had acted. There was no hon. Gentleman in the House who would say so; and yet these sheriffs, without any purpose to be answered, were kept in the face of the country, were detained in custody, and it was impossible to understand when or how they were to be discharged except by that step, which he was sure would ultimately be taken, a prorogation of the House, if only for one day. He felt convinced that the Throne would be besieged with petitions to her Majesty to prorogue Parliament: that prorogation would be conceded, it would be but for one day perhaps; but that one day would put an end to the power of the House over the prisoners. He would ask the House whether it were wise to go further; he would implore the House not to persist in a course, every step of which was a step downward. If the House thought it necessary to do something upon the subject, let it do that which would be the only effectual remedy; let it make its proceedings in such matters lawful by act of Parliament. Let it destroy any chance of collision with the other constituted authorities of the realm. Let it remove the possibility of conflicts such as these, beginning with Mr. Stockdale and his attorney; going on to the bar, proceeding from the bar to the judges, from the judges to the House of Lords, and, above all, at last, to the people of England—that people who had ever stood, and who would ever stand up for the law and for the judges, against all illegal authority whatever. Would it not be wiser to adopt such a course as he 465 proposed than to persevere in a system of attempted terror, which would prove utterly ineffectual. Oderint dum metuant was at the best but a bad maxim for the House of Commons; but he believed the House would have all the evils without any of the advantages of the maxim, if they proceeded to an attempt to act upon it. He believed they would excite far more indignation than alarm, and be deemed odious without becoming formidable. The House would never be able to maintain a privilege against the law of the land. The prerogative of the Crown and the Privilege of Parliament were in this respect on the same footing. Both were part of the law of the land, and when confined within the law, entitled to respect and obedience. When strained beyond the law, neither was entitled to any respect or obedience whatever. An attack on the Bishops had been fatal to the illegal claims of Prerogative, and he had no doubt that an attack on the Judges would be equally fatal to the illegal claims of Privilege.
said, he had listened with much attention to the able arguments of the hon. and learned Gentleman, and it appeared to him that almost the whole of the speech which was just concluded had been addressed rather to the case which had been already determined upon by the House, than to the question now before them. The question now was not whether the sheriffs were to be committed, or whether they were to be discharged; but the question now was whether, having taken the steps which they had taken—having passed certain resolutions, and having determined that they would, as far as the constitution gave them power, exercise that power in executing those resolutions—the question was whether, after having committed the sheriffs, the House should stop short, and proceed to that which was the necessary sequel to what the House had already done. The hon. and learned Gentleman said, it was unfair to apply the practice of the Court of Chancery, or resort to it for an analogy to the present proceedings of the House of Commons; and the hon. and learned Gentleman said, and said very truly, that the Court of Chancery assumed no power, no superiority over the courts of common law; that was to say, that the Court of Chancery assumed no power to control the judges of the courts of common law; but the hon. and learned Gentleman 466 appeared somewhat to misapprehend the manner in which this topic was urged. That topic had been urged in answer to an objection made on one of the grounds addressed to the House by the hon. and learned Gentleman, namely, to those who objected that the House had no right—that the constitution gave it no right—no, nor any analogy to the right which it claimed—of interrupting the proceedings of any of her Majesty's subjects in seeking to obtain that remedy which a court of law said it would afford them. It had been asked—Why seek to stop Stockdale? He had, it was said, a legal right to maintain an action for libel; he proceeded to assert that right, and the Court of Queen's Bench determined that he was entitled to maintain his action. It was said to the House, supposing you are right in asserting the privilege, yet we ask you not to attempt to assert that privilege by interfering with the subject's right to bring an action in a court of law, and the plain answer to this was, that the House of Commons, as one branch of the Constitution, and in itself a Court of Parliament, was entitled to judge of its own privileges, and being possessed of certain powers, to exert those powers in the prevention of any proceedings which were an impeachment of its privileges; and in support of this view of the case, it had been observed that the Court of Chancery did the same. What was the proceeding of the Court of Chancery in cases of contempt? Precisely what the House had done in the case of Stockdale. When an injunction had been obtained in the Court of Chancery, the party who, in violation of the orders of that injunction, proceeds in a court of law, is at once attached and imprisoned for contempt of the court. He (Mr. Pigot) would just read to the House, from a note he had taken, the opinion upon this subject of one of the highest authorities, who ever presided over the Court of Chancery; and he would quote it as showing what that court did in such cases—how it interfered with the common-law rights of the subject, and what steps it took in thus interfering. In the case which occurred in the Court of Chancery in Lord Eldon's time—"Frowd v. Lawrence"—an attachment was set aside on the ground of irregularity. The party who had been successful in setting aside the attachment brought his action against the party who had acted on the attach- 467 ment; and that action he was certainly entitled to maintain in a court of law. There was no defence to the action at all; the legal right was vested in him, and he recovered his damages in the court of law. The Court of Chancery was applied to to stop the action. What said Lord Eldon?—The defendant, after attachment is discharged, brings an action at law for damages, and a motion is now made to me for an injunction to restrain him, brevi manu, from going on with it. I need not point out the importance of this question, for it is one between this court and the right of the subject to ask a jury for damages for his having been deprived of his liberty.Lord Eldon, after discussing the question, and referring to various authorities, to show that in such cases the court had power to restrain the right of the subject at common law, concluded by observing, thatTrue it was, the jurisdiction of the Court of Chancery in this matter was very extensive, but he was not at liberty to give it up.So he said. The jurisdiction of the Court of Chancery, which had not by the constitution the power of depriving of their functions the judges of the courts of law, could not be exercised without compelling those who had vested rights which they could assert at law, to assert those rights before the legal tribunal. Once remove the jurisdiction, and the power of the Court of Chancery to dispense justice between man and man was removed. Once remove the jurisdiction of this House and the assertion of its privilege, to prevent the bringing of actions, and its privileges were gone, and it ceased to be useful. Therefore, the analogy was, to the extent to which it was applied, strictly applicable, to show that the mere circumstance of the legal right of restraining a wrong action was no objection to the course which they had adopted, and that course was founded just on the same necessity for asserting their privileges, by arresting the progress of the proceedings of a court of law, by punishing the parties who put those proceedings in motion. It was founded on precisely the same necessity for the assertion of the privileges of the House, that contempt of the jurisdiction of the Court of Chancery was founded to sustain its privileges. He thought that the hon. and learned Gentleman, having assumed, as 468 he did, the existence of the privilege—having assumed the necessity of exercising the privilege, was bound to point out to the House what course the House was to adopt. The hon. Gentleman said, that having committed the sheriff's, they were not to proceed against the attorney, Mr. Howard. Now, what was the course of the Court of Chancery on this subject? It was said that they were interfering with the privileges of the profession, and that they were interfering with the right of the party to obtain the benefit of the advice of his attorney. What did the Court of Chancery in all the proceedings in which it stayed the action at law? There could not be higher authorities than those who were now listening to him on this subject. Referring to their recollection, he would say that the ordinary proceeding of the Court of Chancery, where an action at law was prosecuted, and where that prosecution was in violation of the injunction of the court, was that the party and his attorney were committed for contempt. He could refer the hon. and learned Gentleman to a multitude of cases in which that proceeding was uniformly adopted. In the ordinary motions of the Court of Chancery, the party who violated the order, if an attorney, stood committed; and in a case, which he thought must be familiar to those who were engaged in these proceedings, in which a party proceeded against an order of the Court of Chancery staying proceedings in an action at law, the Court of Chancery was there called on, not to commit the party; they were placed in that state; but they were called on to commit the attorney, and that was the ground on which the order was made. He thought that the hon. and learned Gentleman fell into another error in referring to the proceedings at law in the case of "Stockdale v. Hansard." The hon. and learned Member said, that nothing whatever appeared in these proceedings but that there had been an action for libel—that there had been judgment by default—that the question whether or not it was a privileged publication had never yet been submitted to the determination of a court of law—that in this case the question had never yet been decided, and that, therefore, they ought to submit the question to the legal tribunal. Did the hon. and learned Member forget that, in the first action which was brought by Stockdale foe the very publication which 469 was the subject matter of this proceeding, that that very question was raised by Lord Denman, and Lord Denman, delivering the same opinion which he did when the question came before him on demurrer, distinctly stated, "My direction to you, the jury, is, subject to any question hereafter, that the fact of the House of Commons having directed Hansard to publish all Parliamentary reports is in itself no justification of them, or any other booksellers, if such publication contains a libel." What had they here? They had this established. The very course had been tried by which it was possible to assert the right of publishing—the validity of these proceedings. The case went again before the court, and they decided against the House of Commons; and now, the hon. Member said, that because in this action neither of these courses had been adopted, but only the alternative was adopted which remained for the House of Commons to pursue—viz., to let judgment go by default, and then to apply the power of committal, just as the Court of Chancery applied the power of committal where persons brought an action in contempt of their authority, he objected to this proceeding. What was his objection? That in this action they had not tried the question in a court of law. How did that avail on this occasion? Were they or were they not to secure their privileges? Let him refer to the position in which the attorney stood. There was not a person who would not concur in most deeply deploring the necessity of taking proceedings against Mr. Howard, situated as he would be at the bar; but in what way was it possible to prevent the constant bringing and prosecution of actions unless they took the additional step which they were now called on to take? It was said, in the course of the argument, that when Mr. Stockdale was about to bring his action he would go to Calais and laugh to scorn the authority of the House. And so he might. But if it were established that whenever an action was brought, however it might be commenced, it could not be prosecuted without the instrumentality of an attorney, and if it were published to the world, and established by the precedent which the proceedings in this case would establish, that whoever assisted in the bringing an action would be liable to be committed for a contempt of the jurisdiction of the House 470 of Commons—it did interpose some bar. He would tell the hon. Member that this afforded some mode of accounting for that which he had taunted his opponents for not having suggested—viz., that for the last 150 years they had not adopted this course of proceeding. Why the truth was this, that in those cases in which the House of Commons asserted this jurisdiction, those cases in which they did assert the jurisdiction of committing attorneys who acted in contempt of their authority, have had that effect. The hon. Member said, that no such cases existed for 150 years, and he had asked for an instance in which the House of Commons had interposed to prevent the bringing an action. When the hon. Member pointed out an instance in which this action had been brought, he might then be able to furnish him with an answer; but this he would tell the hon. Member, that if it was established that the power of committal for contempt was in the House, and that its jurisdiction for contempt was not questionable—if it were established that the House was armed with authority to punish those who assisted in the prosecution of actions—if that public warning were given, he would venture to predict that, although in the excited state of public feeling, there would be those who would tender themselves as martyrs in the cause of Mr. Stockdale, very few would be found to follow the example. Was this, upon the face of it, a proceeding in which any great degree of tenderness ought to be exhibited towards the party whose cause was now before the House? Recollect that Mr. Stockdale prosecuted the former action as a pauper. The attorney had not, therefore, the temptation of gain. Did the Attorney engage in this proceeding for the purpose of forwarding the objects of Mr. Stockdale, as Mr. Stockdale had disclosed them? Or did he lend himself to this proceeding for the purpose of an experiment by which he might acquire those results in the damages which were the expected fruits of the action? If he lent himself to Mr. Stockdale for the purpose of violating the orders of the House, for the express purpose of acting in defiance of its authority, it would hardly be said that the House was to stay proceedings against Mr. Howard. This he thought they were entitled to say, that, as far as the papers were before the House—as far as the transactions were now dis- 471 closed, there was nothing to induce the House to adopt that course. After the debates which had taken place he should not be tempted to enter into the general discussion—he rose merely for the purpose of pointing out that he thought the hon. and learned Member, truly describing, as he had done, the course which had been adopted by the Chancellor's orders, misapplied the mode in which the argument had been employed, and he thought that hon. Gentleman could not take a better mode of asserting the principle than by saying with Lord Eldon,—The authority is good and the jurisdiction is a strong one, but these privileges have been committed to us as trustees for the public, and we are not at liberty to give up the jurisdiction.
§ Mr. Sergeant Jackson
said, that the hon. and learned Gentleman who had just sat down had spoken of the hon. and learned Member for Ripon as having wandered away from the question before the House; but he would put it to the House whether the hon. and learned Member was exposed to that remark. On the contrary, he had applied himself with great force and effect to the question whether they should call before the House the attorney of Mr. Stockdale. The learned Solicitor-general for Ireland had failed in answering one of the arguments of the hon. and learned Member. He had asked why the House should stop short here? He asked the same question, why did the House stop short? Why did it not attempt to grapple with the learned counsel who defended Mr. Stockdale, instead of dealing with the subordinate agent? Why did it not grapple with the judges? The argument of the hon. and learned Gentleman (Mr. Pigot) was, that there was an analogy between the proceedings of the House and of the Court of Chancery. The hon. and learned Member for Ripon had shown that there was not the slightest analogy between the two. The proceeding in the Court of Chancery was to issue her Majesty's writ of injunction, to prevent an action in a court of law. It had been said, that it was an act of cowardice to stop short now; but it was no act of courage to persevere in a cause which they were satisfied was wrong. On the contrary, true courage was shown in stopping short when you were satisfied you were in the wrong. Two things wrong never made one thing right. But he had been told 472 that it was matter of necessity that such a course should be taken, and his right hon. Friend (Sir R. Peel) had based his argument on that ground; but, with all the respect he entertained for his right hon. Friend, he was of opinion that his right hon. Friend had not made out his position. He had said "How is it possible that I can justify my conduct to my constituents who may complain of it, if I cannot disclose to them evidence taken before the House, and printed by its order." He conceived that, if a Member were called upon to justify his vote to his constituents, or to the country at large, and for that purpose disclose to him the substance of the evidence, or put into their hands a printed report of the evidence, there was not a court in Westminster Hall or on the other side of the water, and he would venture to say in Scotland, that would not hold that to be a justifiable and privileged communication. The proceedings of the Court of Queen's Bench had been arraigned by confounding two distinct propositions. It was a distinct and separate question whether this was a matter examinable in a court of law. If it was (and he had heard no second opinion in Westminster Hall as to the court's right to examine it) the court might go wrong, and if it did—as it was liable to do in all questions which came before it—there was a way of setting it right by appealing to a superior tribunal. But it was said, was the House to submit its privileges to the decision of the House of Lords, a co-ordinate branch of the Legislature? But the question would not go to the House of Lords as a co-ordinate branch of the legislature, but as a higher, and the highest, court of justice in the country. There was nothing derogatory in that. His right hon. Friend (Sir R. Peel) had referred to the proceedings on the 1st. of August; he had said that the resolutions had been carried by a majority of the House, and that he had not been dealt fairly with; "You should have told me," said the right hon. Baronet, "on the 1st of August what the law was." But the right hon. Baronet should have recollected that there was not on that occasion a single practising lawyer in the House, save the then Solicitor-general, Sir R. M. Rolfe. And what was the state of the House? There were only 124 members present. It was a little too much to say, if the House sat day after day, doing nothing at all, till the month of August, that 473 professional members were bound to attend, to the neglect of their own business. But, on the occasion referred to, there was no lawyer in the House to give the information, and there was no lawyer now in the House who would not have given the same opinion then. Those who now were desirous of carrying privilege to such an extent would ultimately find, that they were in the wrong. Indeed he thought that they already began to perceive it. They had been wrong from the beginning, to pass declaratory resolutions, and should have reserved their privileges for defensive purposes. They should have reserved their resolutions until the occasion arose, and only provide pro re nata. In their first resolution, which declared their right of publishing their proceedings, they were in the right. But then there was another question—namely, to what extent were they warranted in publishing them? The right hon. Baronet the Member for Tamworth was perfectly right when he said they were warranted in communicating their proceedings to their constituents, but he denied their right to sell the printed papers of that House; he denied their right of publishing their proceedings to the world. He never denied the right contended for by the right hon. Member for Tamworth, of Members communicating their proceedings to their constituents. He was not departing from the position which he had formerly laid down. He admitted that they sat there as the representatives of the whole people. If a court of justice denied the right which the House claimed to exercise, what was the course which should be pursued? Let the House bring in a Bill to settle the question by law, and to give them the right which they claimed. He was sure that the other House would co-operate with them in enacting a declaratory law to this effect, founding it on the principle that the publication should be made without malicious motive.
§ Sir Charles Grey
said, I trust the declaration of the hon. and learned Sergeant may be hailed as an augury of the favourable termination of these disputes. It is scarcely consistent, indeed, with the usual boldness of his bearing in the field of debate, that we should learn his opinion only in so late a stage; but it is better late than never; and coupled with the admissions which have been made by other hon. Members, it may be fairly taken as a proof, that in the 474 minority which has opposed the recent votes of the House in these questions, even those hon. Members who belong to the legal profession, do not any longer think of putting the same restrictions on our proceedings which the Court of Queen's Bench is reported to have assigned to them; and the hon. and learned Sergeant, the Member for Bandon, will allow me to say, that it is impossible for him to make any stand at the point to which he has limited his concessions. He will see, that having gone so far, he cannot help going with us to the whole extent of our claim. There are occasions, on which nothing less will answer the legitimate purposes of this House than a publication of our proceedings to all the world. The hon. and learned Sergeant says, that he thinks we have the liberty of communicating them to our constituents, but not to all the world. Does he recollect what our proceedings are, and has he considered what contrivances would be required, and what ludicrous difficulties would arise in observing this half secrecy? Any one of the 658 Members of this House may safely communicate the proceedings of Parliament to all his constituents, but may not allow them to be seen by any one of his servants, or his guests. Why, if any one were in want of a subject for the stage, I would recommend him to imagine a Member of Parliament, a country gentleman, accustomed to be honest and open in all his ways, who should find himself obliged under this new rule to have a private and locked-up chamber prepared in some retired part of his house, for the reception of these dangerous and voluminous papers, to which he would be seen occasionally, and, all alone, to resort. What suspicions might arise? Perhaps, that he was a disaffected subject of her Majesty, and had a concealed store of arms; or if female curiosity should espy through the key-hole these masses of blue paper, even worse fears might be suggested, vaguely associated with Blue-beard and his blue chamber. Sir, I do not wonder that the hon. and learned Member for Ripon, who, if any one could defend the untenable position taken by the Court of Queen's Bench, has shewn himself able to do so, is, to night, desirous the contest should be shifted from that ground, and is willing to argue the questions which have arisen as to our course of proceeding upon the supposition that we do hold the right of publishing our proceedings. I will take the case upon that ground; and that step being 475 gained, all questions as to our proceedings against Stockdale himself, seems, as a necessary consequence, to be waived. But the sheriffs, it is said, ought not to have been committed: they acted in obedience to an oath: they could not possibly have done otherwise than they have done: they are the servants of the Court of Queen's Bench: and you are going to "amerce them of their monies" for doing their duty. Sir, I saw that there was an erroneous impression upon some hon. Members, that the sheriff's were inextricably hound by the wording of their oaths, to execute all writs: and that we were about to be pressed by the argument, that we were forcing them to commit perjury. It would have been a most preposterous thing if such had been the tenor of the oath: and knowing that the word "execute" was not there, I asked a question of that very intelligent and very able officer, the under-sheriff, which, he prevented from being of any use at the time, by answering that the words, indeed, were, that the sheriffs should "truly return and truly serve" all writs; but that "serve" meant "execute." I must beg leave, on that point, to express a different opinion. The word "serve" as it stands in that oath, is a servile translation of the latin word "servire," and the old Norman "servir," which I interpret as binding the sheriffs to "render lawful aid"; and the interpretation of the under sheriff reminds me of an atrocious jest upon the word, which may serve, however, to fix its meaning in our recollections. One, whose name stands upon the death-warrant of King Charles, had for his motto De bon vouloir servir le Roi: and, on being asked whether he thought "this was serving the king," he is said to have answered, "I think it is serving him right," but certainly, if Mr. France's translation of the word be the proper one, the regicide might have reconciled his deed with his motto without having recourse to a joke upon so dire an occasion. Sir, the sheriffs are bound by their oath to do what the law requires them to do, and neither more nor less. They are not servants of the Court of Queen's Bench, but officers of the Crown, whose duty it is to render lawful service to the writs of that and of all other courts which are directed to them; they are not bound to take the interpretation of the law from the Court of Queen's Bench alone; and you have heard from themselves, that when a writ comes to their hands which has been improvidently issued against a 476 privileged person, they do not feel embarrassed by anything which is contained in their oaths. They know full well that it does not bind them to invade a privilege; and they caution their bailiffs beforehand to take care that he does not commit that mistake. From their own mouths, then, it is acknowledged, that if the privilege which we have asserted, and which we continue to assert, be a lawful one, they have done what they ought not to have done in executing the writ of fieri facias against Hansard. It is the execution of the writ in violation of privilege, and not the abstaining from it, which is counter to their oath. It is not their own monies of which they are in any danger of being amerced by us, but the monies of Hansard, which they are called upon to restore. They have seized the printing presses of a servant of the House, with which the House had ordered its proceedings to be printed: and they have put them up to sale in defiance of the resolutions of the House: they had the proceeds in their pocket as they stood at your bar; and, holding the opinion which you do as to your privilege, would it not have been sheer imbecility to have allowed them to carry these away! If they are to suffer any hardship it is not we who inflict it. We have demanded only that what had been taken from our servant should be restored to him. If they should subsequently be compelled to pay to Stockdale out of their own monies the amount named in the writ, it will be the tribunal which enforces that payment which will inflict the hardship and will amerce them of their monies. If the sheriffs do suffer, it will be in consequence of error in the proceedings of those upon the rightness of whose decisions the property nay the life of any of Her Majesty's subjects may depend: and we have at least the consolation that the quarter from which such a risk is threatened is one from which above all others it is the most unlikely that any permanent and ultimate injustice or hardship should proceed. It is not, however, the case of the sheriffs which is immediately before the House, but that of Mr. Howard the Attorney of Stockdale: and, having all along been deeply impressed with the grave importance of these questions and the serious consequences which are connected with them, I do not conceal from myself that we have now come to a new point in in our proceedings which demands the most serious consideration. It has almost been a turning point with me. I have felt that 477 to treat as a contempt the act of the Attorney whose name is on the Rolls of the Court of Queen's Bench, and who may be deemed an officer of that court is a different thing from dealing with Stockdale who is a private person, or the sheriffs whose public duty it is to act indifferently and without favour between this House and the Court of Queen's Bench. I do not see where we shall he able to make a stop between the lowest and the highest officers of that court if the defence of our privileges should bring us into conflict with both. I thought last night that in committing the sheriffs all that was absolutely necessary for the assertion of our privileges had been done; and I did not vote for bringing Mr. Howard here to-day. But he is in attendance under the orders of the House, and it is now stated, without contradiction, that even in this short interval opportunities of bringing the question of our privilege into fresh consideration before the judges without implicating the House of Commons as a party to the proceedings, and of obtaining the opinions of those judges who have not yet expressed any, have occurred and have passed away: and that there is an adherence to the decision which we deem to be erroneous and an invasion of our privileges. Gladly would I avoid the encounter which I apprehend; and mournfully do I contemplate its issue, whatever it may be. But I can perceive now no other course which is open to us than to compel an acquiescence in our claim of privilege, or to commit the final determination of it to some other tribunal; and I do not hesitate as to which of these courses we should take. The House of Commons is one branch of the High Court of Parliament, all the three component parts of which did at one time sit together. When they ceased to do so each retained for its separate and legitimate functions, and to the extent to which they were adapted to those functions, all the privileges and all the powers which the whole High Court of Parliament possessed. In like manner each of the Courts of Westminster Hall is a branch of the ancient Court of the Aula Regis, and each possesses, as far as they are adapted to the discharge of its peculiar duties, all the rights and powers of the whole Court of the Aula Regis. When the House of Commons ceased to sit with the House of Lords, it did not abandon or commit to the House of Lords the right of defining or declaring the privileges of the Commons, but has always reserved the assertion of 478 them to itself. A contest between any branch of the High Court of Parliament, and any branch of the Aula Regis, is as a contest between the whole of the one Court, and the whole of the other: and if matters should be brought to so melancholy an issue, that in the face of this great country and of the world, one of these must yield, it is the Aula Regis that must give way, and not the High Court of Parliament.
§ The House divided on the amendment, that Mr. Howard be discharged:—Ayes 92; Noes 210: Majority 118.
|List of the AYES.|
|Acland, Sir T. D.||James, Sir W. C.|
|Acland, T. D.||Jones, J.|
|A'Court, Captain||Kemble, H.|
|Alsager, Captain||Knatchbull, right hon. Sir E.|
|Attwood, W.||Knightley, Sir C.|
|Attwood, M.||Knox, hon. T.|
|Bagge, W.||Law, hon. C; E.|
|Baring, hon. F.||Lefroy, rt. hon. T.|
|Bateson, Sir R.||Lowther, J. H.|
|Bentinck, Lord G.||Lygon, hon. Gen.|
|Blackstone, W. S.||Mackenzie, T.|
|Bland ford, Marq.||Mahon, Viscount|
|Bruce, Lord E.||Mathew, G. B.|
|Bruges, W.H.L.||Maxwell, hon. S. R.|
|Buck, L. W.||Nicholl, J.|
|Buller, Sir J. Y.||Norreys, Lord|
|Castlereagh, Viscount||Packe, C. W.|
|Christopher, R. A.||Palmer, R.|
|Corry, hon. H.||Palmer, G.|
|Darby, G.||Pemberton, T.|
|Dick, Q.||Perceval, Colonel|
|D'Israeli, B.||Plumptre, J. P,|
|Duke, Sir. J.||Polhill, F.|
|Duncombe, T.||Powerscourt, Lord|
|Elliot, Lord||Praed, W. T.|
|Fielden, W.||Pringle, A.|
|Filmer, Sir E.||Richards, R.|
|Fitzroy, hon. H.||Round, C. G.|
|Forester, hon. G.||Round, J.|
|Freshfield, J. W.||Rushbrooke, Colonel|
|Gordon, hon. Captain||Rushout, G.|
|Goring, H. D.||Sheppard, T.|
|Grant, F. W.||Shirley, E. J.|
|Greene, T.||Sibthorp, Colonel|
|Grimsditch, T.||Smyth, Sir G. H.|
|Halford, H.||Somerset, Lord G.|
|Hamilton, Lord C.||Stormont, Viscount|
|Herries, rt. hon. J. C.||Sugden, rt. hn. Sir E.|
|Hodgson, F.||Talfourd, Sergeant|
|Hogg, J. W.||Thompson, Alderman|
|Holmes, W,||Vivian, J. E.|
|Hope, H. T.||Walsh, Sir J.|
|Hope, G. W.||Williams, R.|
|Ingham, R.||Young, Sir W.|
|Inglis, Sir R. H.||TELLERS.|
|Irton, S.||Godson, R.|
|Jackson, Serjeant||Kelly F.|
|List of the NOES.|
|Abercromby, hn. G.R.||Fitzalan, Lord|
|Adam, Admiral||Fitzsimon, N.|
|Aglionby, H. A.||Fleetwood, Sir P. H.|
|Ainsworth, P.||Fort, J.|
|Alston, R.||Freemantle, Sir T.|
|Anson, hon. Colonel||Gillon, W. D.|
|Anson, Sir G.||Gisborne, T.|
|Archbold, R.||Gordon, R.|
|Baines, E.||Goulburn, rt. hon. H.|
|Baring, rt. hon. F. T.||Graham, rt. hon. Sir J.|
|Barnard, E. G.||Grattan, H.|
|Barron, H. W.||Greg, R. H.|
|Barry, G. S.||Greig, D.|
|Beamish, F. B.||Grey, rt. hon. Sir C.|
|Bellew, R. M.||Grey, rt. hon. Sir G.|
|Berkeley, hon. H.||Hall, Sir B.|
|Bernal, R.||Harcourt, G. G.|
|Bewes, T.||Harland, W. C.|
|Blair, J.||Hastie, A.|
|Blake, M. J.||Hawkes, T.|
|Blake, W. J.||Hawkins, J. H.|
|Blakemore, R.||Hayter, W. G.|
|Blennerhasset, A.||Heathcoat, J.|
|Blewitt, R. J.||Hector, C. J.|
|Bodkin, J. J.||Hindley, C.|
|Bolling, W.||Hobhouse, right hon. Sir J.|
|Bridgeman, H.||Hobhouse, T. B.|
|Briscoe, J. I.||Hodges, T. L.|
|Brocklehurst, J.||Hodgson, R.|
|Brodie, W. B.||Hope, hon. C.|
|Brotherton, J.||Horsman, E.|
|Buller, C,||Hoskins, K.|
|Busfield, W.||Howard, P. H.|
|Byng, G.||Howick, Viscount|
|Campbell, Sir J.||Hughes, W. B.|
|Cavendish, hon. G. H.||Hume, J.|
|Chester, H.||Hutton, R.|
|Chetwynd, Major||Irving, J.|
|Chichester, J. P. B.||James, W.|
|Clay, W.||Jervis, J.|
|Clements, Viscount||Labouchere, rt. hon. H.|
|Clerk, Sir G.||Langdale, hon. C.|
|Clive, E. B.||Lascelles, hon. W. S.|
|Collier, J.||Leader, J. T.|
|Collins, W.||Lemon, Sir C.|
|Courtenay, P.||Lister, E. C.|
|Craig, W. G.||Loch, J.|
|Crompton, Sir S.||Lushington, rt. hon. S.|
|Curry, Serjeant||Mackenzie, W. S.|
|Dalmeny, Lord||Macnamara, Major|
|Donkin, Sir R. S.||M'Taggart, J.|
|Duff, J.||Mashall, W.|
|Dundas, C. W. D.||Martin, J.|
|Dundas, F.||Maule, hon. F.|
|Dundas, Sir R.||Melgund, Viscount|
|Du Pre, G.||Morpeth, Viscount|
|Easthope, J.||Morris, D.|
|Ellis, J.||Murray, A.|
|Ellis, W.||Muskett, G. A.|
|Evans, G.||Norreys, Sir D. J.|
|Ewart, W.||O'Brien, C.|
|Fenton, J.||O'Brien, W. S.|
|Ferguson, Sir R. A.||O'Callaghan, hon. C.|
|Finch, F.||O'Connell, D.|
|O'Connell, M. J.||Stansfield, W. R. C.|
|O'Connell, M.||Staunton, Sir G. T.|
|O'Conner Don||Steuart, R.|
|O'Ferrall, R. M.||Stuart, W. V.|
|Paget, Lord A.||Stock, Dr.|
|Parker, M.||Strickland, Sir G.|
|Parker, R. T.||Strutt, E.|
|Parnell, rt. hon. Sir H.||Surrey, Earl of|
|Pattison, J.||Talbot, J. H.|
|Pease, J.||Tancred, H. W.|
|Pechell, Captain||Tavistock, Marq. of|
|Peel, rt. hon. Sir R.||Teignmouth, Lord|
|Pendarves, E. W. W.||Thornely, T.|
|Phillipps, Sir R.||Tellemache, F. J.|
|Pigot, D. R.||Troubridge, Sir E. T.|
|Ponsonby, C. F. A. C.||Turner, E.|
|Power, J.||Turner, W.|
|Protheroe, E.||Vigors, N. A.|
|Pryme, G.||Villiers, hon. C. P.|
|Ramsbottom, J.||Vivian, Major C.|
|Redington, T. N.||Vivian, rt. hn. Sir R.H.|
|Rice, E. R.||Waddington, H. S.|
|Rich, H.||Wakley, T.|
|Roche, E. B.||Wall, C. B.|
|Roche, W.||Wallace, R.|
|Rundle, J.||Warburton, H.|
|Russell, Lord J.||Ward, H. G.|
|Rutherford, rt. hon. A.||Westenra, hon. J. C.|
|Salwey, Colonel||White, A.|
|Sandon, Viscount||Whitmore, T. C.|
|Sanford, E. A.||Williams, W.|
|Scholefield J.||Wilshere, W.|
|Scrope, G. P.||Winnington, H. J.|
|Seale, Sir J. H.||Wood, G. W.|
|Seymour, Lord||Worsley, Lord|
|Sheil, rt. hon. R. L.||Wrightson, W. B.|
|Sinclair, Sir G.||Wyse, T.|
|Smith, J. A.||Yates, J. A.|
|Smith, B.||Young, J.|
|Smith, R. V.||TELLERS.|
|Speirs, A.||Stanley, hon. E. J.|
|Stanley, Lord||Parker, J.|
§ Original motion agreed.
§ Mr. Thomas Burton Howard called in, and examined.
§ You filed the declaration?—Yes.
§ Did you sue out the writ of inquiry?—I did.
§ Did you sue out the fieri facias?—Yes.
was then understood to say, in answer to the Attorney-general, that he was aware of the resolutions of the House, and had been served with a copy of them. The writ had been issued when he filed the declaration—the first proceeding he took was to file the declaration.
After some further questions which elicited from Mr. Howard, that he was aware of the resolutions of the House, but acted as he was bound to act.
§ Sir E. Sugden
, who asked, had he any explanation to offer?—I humbly conceived that I was doing my duty towards Mr. Stockdale. If I had refrained from continuing the proceeding, he might have brought an action against me. If I have been mistaken as to the manner in which I thought myself compelled to proceed, and if I have thereby incurred the displeasure of the House, I deeply and most honestly regret it.
§ Lord J. Russell
said, that the question for the House to consider in this case, was whether they could, consistently with the maintenance of their privileges, and with the course which they had taken hitherto in this matter, not take the same course with respect to this individual as they had already done with regard to other persons. On listening to the evidence which had been given at the bar, he owned that he was inclined to think that Mr. Howard was disposed to make due submission to this House, and to express his sorrow for the course he had pursued in a matter, in which he had undoubtedly found himself surrounded by considerable difficulties, and therefore, he thought it might not be necessary to pursue with regard to him the same course as had been adopted with regard to others. He found many instances on record of the same course of proceeding as he was about to recommend in this case; but it would be sufficient for the purpose to read one to the House. [The noble Lord then read a case dated 10th December, 1779, of a printer of a newspaper, who had been called before the House to answer for the offence of having grossly misrepresented the speech of a Member, and who having asked the pardon of the hon. Member for the said offence, was ordered to be discharged from any farther proceedings for the said offence.] Upon a consideration of the whole of the present case, he thought he should be justified in now adopting a similar course. Having already committed the plaintiff in this action, who had committed the offence of proceeding against a servant of the House for an act done in the execution of the orders of the House, and the sheriffs who had levied the goods of that servant, he thought that the House had done sufficient to vindicate and assert its privileges as asserted in the resolutions of last Session. He was, therefore, very happy in not feeling himself obliged to make a similar motion in respect of this individual as he had done in regard to others. At the same 482 time, however, he must say that he felt some little doubt and difficulty lest this case should be taken as a precedent, which might lead to inconvenience on any future occasions of the kind, because he found, that on a former occasion, when the House endeavoured to avoid coming into collision with the courts of law, and to settle this matter amicably, that circumstance had been used against them. He hoped, however, that they would not find that a similar advantage would be tried to be taken against them for the course he was now going to adopt. As this was the last motion which he should have to make on this subject, he would take this opportunity of giving notice, on an early day, he should move for the re-appointment of the committee on this subject, with a view of pursuing their enquiries into it. Before he sat down, he begged to say, that he thought the House was very greatly indebted for the manner in which they had been able to discharge their duty on this occasion to the right hon. Baronet, the Member for Tamworth. He (Lord J. Russell) spoke not only of the arguments and the ability with which the right hon. Baronet had defended the course, which he considered identified with the usual functions of the House; but he thought that if this had been taken up entirely as a party question, and that it had appeared that those who voted on one side of the question were all hon. Members who sat on one side of the House, and those who voted on the other side were all Members sitting on the opposite side of the House, if such had appeared to be the case, he thought that their privileges would have been in great danger, and he for one should not have advised the House to put their privileges in such a situation. That such was not the case was mainly owing to the right hon. Baronet, who had expressed his general opposition to the views of her Majesty's Government, but who had, nevertheless, taken part with them in this case, not in support of the Government, or of any individual Member of it, but in support of the privileges of the House; and he thought, therefore, that as long as hon. Members valued their privileges they could never forget the conduct of the right hon. Baronet. The noble Lord moved that Thomas Burton Howard be called in and discharged.
§ Viscount Howick
did not rise to oppose the motion of his noble Friend, but at the same time, he could not sit and hear that 483 motion passed without expressing the deep and heartfelt regret with which he had heard that motion made. He was well aware that the House was always, and very properly so, disposed to deal leniently and considerately with regard to persons who were called on occasions like the present, to appear at that bar; but, at the same time, he considered that at the present moment, the privileges of the House, were in the utmost peril, and the course which they were now recommended to take might greatly increase and aggravate that danger. The House had committed the sheriffs, whom he perfectly believed, were most conscientious men, who, not wishing to give offence to the House, had conceived themselves compelled, by an overruling sense of duty to act contrary to its orders. But this was not the case with respect to attornies. No attorney was obliged by an oath to undertake a cause which it was not proper to advocate. Mr. Howard had taken part in these actions in 1837 and 1838, when he must have been aware of the resolutions which this House had taken; and yet, in spite of these he again voluntarily undertook to act as attorney in these causes. Considering the resolutions which had been come to in August last, he thought it would be impossible to conceive a more decided and grievous breach of the privileges therein declared upon it, if the House wished to maintain this privilege, there Was no course by which they could do so more effectually than by deterring the attornies who ventured to take part in actions of this kind. With respect to parties, without wishing to refer particularly to Mr. Stockdale, it might very often happen, that there would be parties in actions of this sort, to whom it would be no inconvenience or even an advantage to be committed by this House, but the same was not likely to be the case with attornies. Therefore, he thought that they were a class of offenders whom the House was particularly called upon to visit with its severest displeasure. Mr. Howard, to be sure, had said that he was sorry for having offended the House, but he (Viscount Howick) having paid very particular attention to his words could not see that Mr. Howard had uttered one syllable in which he had admitted that he was wrong, or that the House was right. Mr. Howard had made no acknowledgement of his past error, nor given any promise that in future he would not be guilty of such misconduct. 484 If he had made such a promise then he might have been excused by the House; but such he had not done, and therefore, he thought, that at least, Mr. Howard instead of being at once discharged, should be committed, when it would be open o him if he really wished to set himself right with the House to present a petition expressing clearly his regret for his past conduct and his determination not again to offend in a similar manner. He (Visct. Howick) certainly should not object to the immediate discharge of Mr. Howard, upon his so submitting himself to the House, with no further punishment than a reprimand from the Speaker; but he felt convinced, that according to all precedent, a person who had so wilfully been guilty of a breach of the privileges of the House, ought in the first to be committed, and he greatly regretted that this course had not been adopted by his noble Friend. He abstained from moving an amendment in conformity with the opinion he had now expressed, because he felt with his noble Friend and the right hon. Baronet (who fully merited the eulogium which had been pronounced on his conduct) that unless in every measure they adopted they obtained the support of a large portion of the Members of that House, it was in vain to hope for the maintenance of this important privilege. But he thought it due to himself and to those who might think with him, at this early stage to warn the House against pursuing the same fatal course of weakness and indecision into which they had been betrayed on a former occasion, and to declare his conviction that more decided means for asserting their privileges ought now to be adopted.
§ Mr. Warburton
expressed his perfect concurrence in the opinions of the noble Lord who had just sat down. The excuse of the attorney for violating their privileges was, that having been allowed to proceed to a certain extent, he was undecided between the duty which he owed to the House, and his duty to the courts of law. Now, in what different position were the sheriffs placed, respecting whom they had solemnly resolved that they were guilty of a breach of the privileges of the House, and whom in consequences they had committed? He confessed he could not draw a distinction, the only difference between the two cases being that the attorney had made a very equivocal apology. He thought the House should come to the resolution that the attorney was guilty of 485 contempt, and should be reprimanded before he received his discharge.
§ Mr. Hume
having expressed his regret, when this matter was first brought forward, that the parties originally implicated should be dealt with in the first place, he should support any motion of the nature which the noble Lord (Howick) suggested; and he was only sorry that he had not submitted one to the House. If the sheriffs were guilty, this man was more guilty. He begged the noble Lord (Lord John Russell) to re-consider what he was about. The stand which he had hitherto made, and the course which he had taken, were extremely right. If the noble Lord persisted in his present motion he would be giving up the ground which he had taken, and it would be impossible for the House to persevere in maintaining its privileges.
Mr. S. O'Brien
thought the best course would be to recal the witness, and ask whether he was prepared to make a submission to the House, and to give them an assurance that, under the same circumstances, he would refrain from the course of conduct which he had on this occasion pursued.
§ Mr. Wakley
Not a single step could be taken by the House with the hope of doing good unless they satisfied the public mind—that they could not inflict punishment on any party further than was absolutely and positively necessary to sustain the privileges which they deemed to be essential in conducting the business of the House. He feared the parties were not called to the bar in the best order. It appeared to him that the attorney should have been called as the second party, and after having heard his examination they would have been in a better position to deal with the sheriffs. Having heard from the witness an unequivocal expression of sorrow, he thought the commitments which had already taken place amply sufficient without inflicting punishment on any other party; and he was decidedly of opinion that if they were to proceed to confine Mr. Howard in the cell of that House, they would lose much of that high vantage ground on which they now stood. In the proceedings which took place there, and which were conducted judicially, if 486 anything harsh, cruel, or vindictive appeared, he was satisfied the House would suffer much in public estimation; but he was at the same time convinced that the more the public reflected on this subject, the more they would see the necessity of retaining the privilege which the House sought to hold, and the more clearly would they see that the House of Commons could not exercise a single function with the slightest hope of being useful to the public, unless the power for which they contended was fully and effectually maintained. Before he sat down he must express his gratitude to the right hon. Baronet, who had on this occasion shown himself to be above all party considerations and feelings, in maintaining what he conceived to be the just prerogatives and privileges of the House, and he must say, that if the right hon. Baronet had pursued a different course, he would have inflicted on this country one of the greatest evils which ever befel it, and a calamity which could not be removed by any steps which the House might subsequently think it necessary to take.
§ Sir R. Peel
maintained, in the first place, that the person mainly responsible to the House of Commons was the attorney. The adviser of the legal proceedings incurred a more direct responsibility than the plaintiff, because the latter might be presumed to be an unprofessional and ignorant man, labouring under a sense of injury, and appealing to the law for redress. It was the duty of the attorney, when consulted by an unprofessional man, prejudiced by the sense of the injury which he had sustained, to warn him against incurring the displeasure of the House of Commons by a perseverance in legal proceedings; and if he had abstained from doing so his responsibility was the greater, on the grounds which he had already stated. It appeared to him, then, that their proceedings would have been incomplete, unless the attorney had been called to the bar; but they had certainly made a mistake in not summoning the attorney to attend before the sheriffs. When the attorney was called, his expectation and full intention was that he should vote for his committal, unless he made an explanation perfectly satisfactory to the House. He had listened to the evidence of that gentleman, and he confessed he thought it equivocal. At the same time there was in it such an approach 487 to submission as led him to think that while they should go to all just extremities they should not go beyond the necessity of the case. He was bound to say, that when the witness declared that "if he had been mistaken, he felt extreme regret in incurring the displeasure of the House," and when asked if he had any thing more to say, he replied "that if he could express his regret in stronger terms he would do so;" and when this went out to the world, after their having committed the plaintiff, their committal of this attorney would be considered as rather a severe exercise of their authority. What he doubted, however, was, whether they should immediately discharge him. He thought it perfectly right to have him brought up; he thought him the responsible party; he claimed the right of committing him he did not say that it would be unjust to exercise it, but he maintained that it would be wise to temper justice with mercy in this case as in every other. The course which he wished the noble Lord to have taken was, that the Speaker should be instructed to inform Mr. Howard that he had been guilty of a breach of their privileges; but, at the same time, that as he appeared desirous to submit, and as that was the construction which the House placed on his explanation, they did not wish to proceed to extremities, but cautioned him against any proceeding of a like description. He thought such a motion would have avoided any recourse to extremities, and at the same time placed on record that the attorney was not committed on the express ground that he seemed desirous to offer some reparation to the House for his conduct. That course would be the most consistent with the moderation and mercy which they had hitherto observed.
Having had the high honour of sitting twice on the Committee of Privilege, and seen the entire proceedings, felt justified in impressing on the House the necessity of asserting their privileges in a perfectly unequivocal manner. It appeared to him that the right hon. Baronet had laid down a course perfectly safe. It would become the noble Lord to consider the advice of the right hon. Baronet. The assistance given by the right hon. Baronet in asserting their privileges had been already recognised. The powers which he brought towards effecting the results which had taken place could 488 not be exaggerated. It was impossible to place the question in a more clear and distinct light than the right hon. Baronet had placed it in. Under these circumstances nothing was more desirable than unanimity, and even if the noble Lord were called on to make a sacrifice, he ought to do so for the purpose of insuring the sanction of the large number of Members who had hitherto supported his proceedings. If the attorney were discharged, the man who advised the action, and who had a pecuniary interest it, would have totally escaped, and he might commence a fresh suit to-morrow. They should recollect, too, that in all probability counsel would in the future proceedings before the courts trench upon their privileges; and could it be expected that they would gain in public estimation enabling their opponents to contrast their leniency to the attorney, the adviser, manager, and director of all the proceedings, with any severity they might exercise towards the counsel, who knew nothing whatever of the plaintiff.
§ Sir R. Inglis
thought it strange that the noble Lord, who had carried all his previous motions so triumphantly, should be pressed by the "friends of freedom" to an act of greater severity than he was inclined to propose in this instance.
§ The Attorney-General
rose to move an amendment, in compliance with the suggestion of his noble Friend (Lord J. Russell)
§ The Attorney-General
thought the hon. Recorder ought to have exercised a little more patience before interrupting him. He rose to make a motion in accordance with what had fallen from the right hon. Gentleman, and he believed with the general assent of the House. He did not retract anything he had already said as to the responsibility of the attorney, and if Mr. Howard had expressed no sorrow and regret for what he had done, he should have had no hesitation in moving for his committal. He would now move—he he would move by way of amendment, though he had no doubt the course would be disagreeable to those who had done all in their power to lower the dignity of that House. [Chair!]
An Hon. Member
rose to order. He would appeal to the Speaker, whether it were consistent with the usages of that assembly, that any hon. Member should 489 impute to other hon. Members that they had done all they could to lower the dignity of the House.
§ The Speaker
said the hon. and learned Member was certainly out of order in imputing such motives to any hon. Members.
The Attorney General
apologised for the expression which had escaped him. He would move, by way of amendment to the motion that had been made—"That Thomas Burton Howard, having been guilty of a breach of the privileges of this House, and having expressed his regret for the same, be now called to the bar and reprimanded by Mr. Speaker."
Mr. M. Attwood
wished to know how far Ministers intended to go. Would they commit the gentlemen at the bar who had argued the case? Would they commit Messrs. Burchell and France? The hon. Member spoke for some minutes, but the continued noise in the House prevented us from catching even the substance of his observations.
§ Mr. Kelly
said, the sooner this question was brought to an end, the better for the dignity and character of the House. He should support the motion of the noble Lord, and oppose the amendment of the hon. and learned Gentleman. As the noble Lord had taken upon himself the office of public prosecutor on this occasion, he hoped the noble Lord would take upon himself the merit of, perhaps, the only act of what the noble Lord would no doubt call lenity, but what he called justice, that had proceeded from that side of the House. He wished before he sat down to remark, that, though it might have appeared by his silent acquiescence during the speech of the hon. and learned Gentleman, he disagreed with the judgment of the judges in this case, he now wished to say, most unequivocally and distinctly, that he held that judgment to be a sound, a learned, a just, and a constitutional judgment, and he trusted it would remain as a monument of the learning, the independence, and the integrity of the learned judges.
§ Mr. Freshfield
thought the Ministers should not have overlooked the gentlemen of the bar, and should not have selected the attorney as the object of their vengeance.
§ Sir Edward Sugden
could not give his vote without observing, that it seemed to him from the examination of the gentle- 490 man who had been at the bar, that it was impossible to visit his conduct with harshness, for he had in fact been appointed attorney by the court, in formâ pauperis in the first action. He had been much struck with a remark that had fallen from he hon. and learned Member for Dublin, who implied, that if they did not commit the attorney now they could not commit he counsel hereafter. Were the counsel to be committed? They had been quite as much guilty of a breach of privilege as he attorney, and yet the House had not the courage to commit them.
said, that Mr. Curwood had as much appeared for Mr. Stockdale as had the attorney, and he begged to ask the noble Lord opposite if he intended to call that learned counsel to the bar of the House?
§ Lord John Russell
had no objection to answer that question. Without repeating the words made use of a short time ago by his hon. and learned Friend (the Attorney-general) he must certainly say, that he had observed that those who differed with him as to the means of best maintaining the dignity and character of the House (that being equally the object of both) seemed to think their cause would be best promoted if they could lead him, and those who thought with him on this occasion, further and further in the committal of the parties concerned in this question. But as they were acting for the purpose of maintaining their privileges only, he was for visiting those parties and committing those parties only whom he thought it necessary so to visit, for that purpose, and for that purpose only. When he was told by those hon. Members who contended for the House giving up its privileges, that the House ought to commit the counsel, and then come to the judges, he was confirmed in his opinion, that they deemed some advantage was to be gained to them, from this proceeding to what might be thought unjustifiable extremities. He must therefore decline the course which the hon. Gentleman had so kindly recommended to him, and he did not propose to call the counsel to the bar to commit them for contempt. What they had done with reepect to commitments was sufficent for the occasion—sufficient to show that the House would never give up the right they had of committing parties who had been guilty of a breach of their privileges. He should end with saying, 491 did he not know that it was a request that would be denied him, that he could wish to withdraw his motion. Certainly, upon comparison of the two, he preferred the amendment.
§ The House divided on the original motion:—Ayes 68; Noes 178: Majority 110.
|List of the AYES.|
|Acland, Sir T. D.||Jones, J.|
|Acland, T. D.||Kelly, F.|
|A'Court, Captain||Kemble, H.|
|Archdall, M.||Knatchbull, right hon. Sir E.|
|Attwood, M.||Knox, hon. T.|
|Attwood, W.||Law, hon. C. E.|
|Bagge, W.||Lefroy, rt. hn. T.|
|Baring, hon. F.||Lowther, J. H.|
|Bateson, Sir R.||Mackenzie, T.|
|Bentinck, Lord G.||Maclean, D.|
|Blackstone, W. S.||Mahon, Viscount|
|Bruce, Lord E.||Mathew, G.B.|
|Bruges, W. H.L.||Maxwell, hon. S. R.|
|Buller, Sir J. Y.||Norreys, Lord|
|Christopher, R. A.||Packe, C. W.|
|Conolly, E.||Pemberton, T.|
|Curry, hon. H.||Perceval, Colonel|
|Darby, G.||Pigot, R.|
|Duke, Sir J.||Plumptre, J. P.|
|Duncombe, T.||Polhill, F.|
|Eaton, R. J.||Powerscourt, Viscount|
|Eliot, Lord||Praed, W. T.|
|Fielden, W.||Pringle, A.|
|Fector, J. M.||Rushbrooke, Col.|
|Filmer, Sir E.||Sibthorp, Colonel|
|Forester, hon. G.||Stormont, Viscount|
|Godson, R.||Sugden, rt. hon. Sir E.|
|Greene, T.||Talfourd, Sergeant|
|Grimsditch, T.||Thompson, Alderman|
|Hamilton, Lord C.||Verner, Colonel|
|Hogg, J. W.||Vivian, J. E.|
|Holmes, W.||Williams, R.|
|Inglis, Sir R. H.||Freshfield, J. W.|
|Jackson, Serjeant||Hope, G. W.|
|List of the NOES.|
|Adam, Admiral||Bowes, J.|
|Aglionby, H. A.||Bridgeman, H.|
|Ainsworth, P.||Broadwood, Hi|
|Alston, R.||Brocklehurst, J.|
|Archbold, R.||Brotherton, J.|
|Baines, E.||Buller, C|
|Baring, rt. hon. F. T.||Busfeild, W.|
|Barnard, E. G.||Campbell, Sir J;|
|Beamish, F. B.||Cavendish, hon. G. H.|
|Bellew, R.M.||Chetwynd, Major|
|Bernal, R.||Chichester, J. P. B.|
|Bewes, T.||Childers, J. W.|
|Blair, J.||Clay, W.|
|Blake, M. J.||Clements, Visc.|
|Blake, W.J.||Clerk, Sir G.|
|Blackmore, R.||Collins, W.|
|Blewitt, R. J.||Courtenay, P.|
|Bolling, W.||Craig, W. G.|
|Curry, Serjeant||Nagle, Sir R.|
|Divett, E.||Norreys, Sir D. J,|
|Donkin, Sir R. S.||O'Brien, C.|
|Dundas, F.||O'Brien, W. S.|
|Dundas, hon. J. C.||O'Connell, D.|
|Dundas, Sir R.||O'Connell, M. J.|
|Du Pre, G.||O'Connell, M.|
|Easthope, J.||Oswald, J.|
|Elliot, hon. J. E.||Paget, Lord A.|
|Ellice, E.||Palmerston, Viscount|
|Ellis, J.||Parker, J.|
|Ewart, W.||Parnell, rt. hn. Sir H.|
|Ferguson, Sir R.||Pease, J.|
|Fitzsimon, N.||Peel, rt. hon. Sir R.|
|Fleetwood, Sir P. H.||Pigot, D. R.|
|Fort, J.||Ponsonby, C. F. A. C.|
|Fremantle, Sir T.||Power, R. T.|
|Gaskell, J. M.||Power, J.|
|Gillon, W. D.||Price, Sir R.|
|Gisborne, T.||Protheroe, E.|
|Gordon, R.||Pryme, G.|
|Goulburn, rt. hn. H.||Rae, rt. hon. Sir W.|
|Graham, rt. hn. Sir J.||Ramsbottom, J.|
|Gregg, R. H.||Redington, T. N.|
|Greig, D.||Rice, E. R.|
|Grey, rt. hon. Sir C.||Rich, H.|
|Hall, Sir B.||Roche, E. B.|
|Harland, W. C.||Roche, W.|
|Hastie, A.||Rundle, J.|
|Hawkes, T.||Russell, Lord J.|
|Hawkins, J. H.||Rutherfurd, rt. hn. A.|
|Hector, C. J.||Salwey, Colonel|
|Hill, Lord A. M. C.||Sandon, Viscount|
|Hindley, C.||Sanford, E. A.|
|Hobhouse, rt. hn. Sir J.||Seale, Sir J. H.|
|Hobhouse, T. B.||Seymour, Lord|
|Hodges, T. L.||Sheil, rt. hon. R. L.|
|Hodgson, R.||Somers, J. P.|
|Holland, R.||Speirs, A.|
|Hollond, R.||Stanley, Lord|
|Hope, hon. C.||Stansfield, W. R. C.|
|Hoskins, K.||Stuart, W. V.|
|Houldsworth, T.||Stock, Dr.|
|Howard, F. J.||Strickland, Sir G.|
|Howard, P. H.||Strutt, E.|
|Howick, Viscount||Sutton. hn. J. H.T.M.|
|Hughes, W. B.||Talbot, J. H.|
|Hume, J.||Tancred, H. W.|
|Humphrey, J.||Teignmouth, Lord|
|Hutton, R.||Thornely, T.|
|Irving, J.||Tollemache, F. J.|
|James, W.||Turner, E.|
|Jenkins, Sir R.||Turner, W.|
|Labouchere, rt. hn. H.||Vigors, N. A.|
|Langdale, hon. C.||Villiers, hon. C. P.|
|Lascelles, hon. W. S.||Vivian, Major C.|
|Lemon, Sir C.||Vivian, rt. hn. Sir R.H.|
|Loch, J.||Waddington, H. S.|
|Lockhart, A. M.||Wakley, T.|
|Lushington, rt. hn. S.||Walker, R.|
|Macnamara, Major||Wallace, R.|
|Marshall, W.||Warburton, H.|
|Martin, J.||Ward, H. G.|
|Melgund, Viscount||Westenra, hon. H. R.|
|Morpeth, Viscount||White, A.|
|Murray, A.||Whitmore, T. C.|
|Muskett, G. A.||Williams, W.|
|Wilshere, W.||Wrightson, W. B.|
|Winnington, Sir T. E.||Wyse, T.|
|Winnington, H. J.||Young, J.|
|Wood, G. W.||Stanley, hon. E. J.|
|Worsley, Lord||Stuart, R.|
§ The question that Mr. Howard be called in to be reprimanded, was put.
§ Sir E. Knatchbull
wished to offer one word before this question was carried. The Speaker was about to call this attorney to the bar for the purpose of reprimanding him for a breach of privilege. If the whole course of their proceedings had reference only to this individual, he should admit, that the course about to be pursued was perfectly correct. But when he recollected that the sheriffs, on being called to the bar, made as nearly as possible the same apology as this man had done, and that instead of being reprimanded and admonished, as it was now proposed to reprimand and admonish this attorney, they had been committed to the custody of the sergeant-at-arms, and were now detained in durance, he could not help thinking that the House was involving itself in a very great inconsistency. Mr. France, too, had been completely acquitted; yet Mr. France stood in precisely the same situation towards the sheriffs, having been their legal adviser throughout the whole of the proceedings in the case, as Mr. Howard did to Mr. Stockdale. To dismis the one and reprimand the other, appeared to him to be a gross inconsisteney.
§ The question carried.
called in, and addressed in the following term by the Speaker:—
Thomas Burton Howard, I have to acquaint you, that the House has come to the following resolution:—That Thomas Burton Howard having been guilty of a contempt and breach of the Privilege of this House, and having expressed his regret at having incurred the displeasure of the House, be now called to the Bar, and reprimanded by Mr. Speaker.In pursuance of this resolution, I have further to acquaint you, that whilst acting in the capacity of attorney to Mr. Stockdale, you caused a writ of inquiry to be executed, and a levy to be made upon the goods of Messrs. Hansard. You did that deliberately and advisedly, after having, according to your own admission, received notice of the resolutions of this House. I have to admonish you, that conduct of this de- 494 scription is a high contempt of the authority of this House, which ought justly to be visited with its severe displeasure. The House, however, having taken into its consideration the contrition which you have expressed, are disposed to deal leniently with you for this offence. I am directed by the House to reprimand you, and I reprimand you accordingly.
§ Ordered, on the motion of the Attorney-general, nemine contradicente, That what has been now said by Mr. Speaker in reprimanding Thomas Burton Howard' be entered in the Journals of this House.
§ Mr. Blackstone
observed, that as the House had dealt so leniently with the gentleman just called in, he begged to move, that John Joseph Stockdale be now called in and reprimanded by the Speaker and discharged.