§ Sir E. Sugden
said, that in bringing forward the motion of which he had given notice, "for the appointment of a committee to consider and report to the House what steps should be taken in order to guard against the reports and other papers of the House which the House may-think it necessary to publish, containing matter criminatory of individuals; and whether it be expedient to discontinue, or to place under any and what restrictions, the sale of such of the proceedings of the House as may be published," he had intended to lay before the House a distinct view of what had in former times taken place in the House of Commons on the subject, and the operation of the practice, and what had latterly taken place, and the operation of that practice, in order to show that it was absolutely necessary some new rules should be adopted with a view to prevent the publications of the House containing matter injurious to individuals, and that it required grave consideration whether, consistently with that view, there could or could not be a safe sale by the House of copies of any of its proceedings. If any scheme could be adopted to prevent their publications containing matter criminatory of the character of individuals, then of course they might be sold. But he was rather deterred from entering upon any discussion by the mode in which the noble Lord (Lord John Russell) had given his notice, which was to move, as an amendment to his motion, that leave be given to bring in a bill to give summary protection to persons employed in the publication of Parliamentary papers. The noble Lord had thus taken him rather at a disadvantage in making his motion as an amendment to his, because they were altogether consistent with each other as he understood them. He regarded his own motion to be intended only to facilitate any measure of legislation that might be deemed necessary; or if legislation were not resorted to, then, to give the public all the benefit without the injury of publication. 949 He could not anticipate the course which the noble Lord was about to take. If he proposed to provide against any injury being done by the publication of papers by the House, whether by sale or not, accompanying that provision by a protection of the officer of the House in the sale of such publications, then the noble Lord might not find in him an opponent; but if the noble Lord was going to ask the legislature to give to the House greater powers than it now possessed in the publication of its papers, leaving the resolutions of 1837 altogether untouched, by which the House claimed the right to declare what should be its own privileges, and made it a breach of those privileges if any court of law should entertain any action relating to the publications of the House; and leaving, too, all the assertions of the powers of the House as against the question of law untouched, and making no provision that, in the publication of their papers, the House should take care that nothing should affect the rights and characters of individuals, then he would at once declare that the noble Lord would not have a more strenuous opposer to his bill than he would find in him on this occasion. He had thought that it would be better to clear away the difficulties which surrounded the question by moving for a Committee, but it would perhaps better consult the convenience of the House if he now postponed his own motion, and gave the noble Lord an opportunity of bringing his intended amendment before the House as a substantive proposition. He had no wish to embarrass the House by the simultaneous discussion of cross motions; and as the noble Lord's bill might render it inexpedient for him to bring forward this proposal for a Committee, he would postpone his notice till that day se'nnight, when he would certainly bring it forward, if the noble Lord intended by his bill to take greater power for the protection of the House against the people; for he certainly should oppose the bill if the noble Lord did not place upon the right of publication those guards to which the public were entitled.
§ Lord John Russell
said, that as the right hon. Gentleman in deferring his present motion had wished him to bring forward his own motion for leave to bring in a bill upon this subject, perhaps the House would allow him then to make the motion which he had intended to submit to the House as an amendment. What the right hon. Gentleman had said in 950 favour of his own proposition, had only confirmed him in the opinion that he was right in bringing forward the bill which he would afterwards introduce. The right hon. Gentleman seemed to think that they ought to examine their right of publication, with the view of restraining it by some legislative measure. [Sir E. Sugden did not contemplate a legislative measure]. He thanked the right hon. Gentleman for the correction, because, it appeared to him that the right hon. Gentleman had evidently expected a bill to place some restriction on the publication, and on the sale of parliamentary papers. It was his opinion, however, that there ought not to be any bill introduced upon this subject which should place any restriction on the right of publication possessed by that House, whatever might be the determination of the House as to the mode in which that publication should be made. And for himself, he had no hesitation in saying that if it were shown that the mode which the House had adopted of late years, that the mode which had been in use since 1835 had led to the distribution of papers, wantonly calumniating any individual, without, indeed, being of opinion that they ought to rescind the resolutions to which they had already come; yet that if any measure should be proposed to that House which should prevent any improper or calumniating publication, he should be perfectly ready to listen to it. At the same time he did not know of any more difficult subject to be undertaken, because there were many publications of reports of evidence and of accounts of proceedings, which, though not intended injuriously to affect any individuals, did bring in the names of many parties, and which were necessary as the foundation of bills, to remedy those general evils, the existence of which was proved by particular cases. It must, however, have become evident to the House, whatever might be the opinion which was entertained with respect to the power and the privilege of the House to regulate its own publications, that it was desirable to provide some more immediate and more effectual means of exercising its powers. His own opinion was, that the powers of the House were very large, and that if they were used to their utmost extent, they would be quite commensurate to effect an observance of the law of Parliament; but the mode in which they could exercise tho6e powers was liable to great 951 objection, and when put into practical operation it produced considerable inconvenience. Let him take the case that had now occurred. Suppose there were proceedings taken during the recess—that an action should be commenced, in which, there being no defence, judgment would at once be given, and the sheriffs would proceed without delay to levy the damages—they would be bound on their meeting to direct their immediate attention to the proceedings, to send for the sheriffs, and to punish them for the breach of privilege; and yet this course was liable to these defects, that it did not stop the action, and they were forced to deal with officers who had been no parties to the proceedings till after they had been before the courts of law; and he, in fact, was the only officer with whom the House could deal to prevent the full execution of the judgment. With respect to any action that might be brought during the sitting of Parliament, there was a more immediate remedy by proceeding against the parties. They might take the plaintiff and the attorney before they had gone far enough to entitle them to call upon the sheriff to execute the writ; but in this latter case, also, it was impossible to exercise the powers of the House without having the time of the House taken up and the attention of Parliament occupied by motions relating to individuals who were endeavouring to oppose the orders of the House. He did not indeed, think, that if they had to deal with persons who were claiming bonâ fide protection from charges at which they were really aggrieved—that those persons would not submit themselves to the authority of the House when they were told that any action they might bring would be a breach of privilege, or that the individuals who were injured would fail to ask the House to give such redress as to the House should seem proper for the damage done to their characters, thus unnecessarily and improperly assailed; but they must recollect that the persons with whom they had to deal were not of that character, that they were persons who did not seek any such compensation as the House could make, that like Mr. Stockdale they might be mentioned in the report of persons acting in the execution of their duty, and that they would immediately seek to derive some advantage by entering into a contest with the House, and by vexatiously con- 952 tinuing to bring actions against the officers of the House. In such cases, although they might punish the individual, although they might proceed upon their resolution and commit him, yet serious inconvenience would arise from the consumption of the time of the House, which was necessarily so valuable, as well in regard to all measures of legislation as to the control that was to be exercised over the executive administration; and, indeed, the whole Session might be occupied in discussions on the cases of individuals, on questions whether they should or should not commit this or that officer, or whether they should or should not discharge this or that prisoner. That was a great public evil; and there were other evils with which the House had not as yet had to contend, but with which, if they were determined to use their powers to the utmost, they must contend; it would be a great evil for instance, if they were forced to come more directly into collision with the courts of law than they had hitherto done. Differing, as he did, from the opinions of the judges in the case of Mr. Stockdale, conceiving, as he did, that the judgment of the Court of Queen's Bench was generally erroneous, and that it was not founded upon a correct appreciation of the privileges of Parliament, yet he must say, upon public grounds, if the House of Commons were to be respected on the one side, and her Majesty's judges on the other were to be held in that estimation and veneration which was necessary to add weight to the administration of the law; that there would be great evil from a more direct collision, and, therefore, that if the House agreed to any proceeding which should bring two parties in the community to take opposite sides, so that one part should be vindicating the House of Commons, whilst another should be adhering to and defending the judges, it would be a misfortune in a public point of view. He thought, therefore, that these were reasons why at that period, having shown that they were determined not to part with any of their necessary powers, they should attempt, by the aid of legislation, to prevent a recurrence and a continuance of those evils to which he had adverted. He felt, at the same time, that there was great force in the objection that any legislation whatever would add strength to the arguments of those who contended that they would thus weaken the privileges of 953 the House; that if any legislative enactments with regard to them were assented to, they must consent to bring all their privileges before the Legislature; and that any enactment would convert all the privileges of the House to such a state as would materially diminish them. Still, he could not but see that at all periods in our history, whatever might have been the subject, whether it regarded the privileges of Parliament or the rights of the Crown, or of any of the constituted authorities, whenever any great public difficulty had arisen, the Parliament, in its collective sense, meaning the Crown, the House of Commons, and the House of Lords, had been called upon to solve those difficulties. This was, as he conceived, the original intention of the constitution of Parliament. He was far from thinking that the constitution of Parliament as it originally stood, rude as it was in its general provisions, did not exhibit great sense in the general distribution of power. It was, as he conceived, among the functions of Parliament, not only to provide for the executive administration of the country, and to pass such laws as should be from time to time required, but also in general to declare what was the state of the law existing at the period, and which declaration was taken as law for ever afterwards. That was done at a remote period, as a part of the inherent power of Parliament; and although it might have been little used lately, yet it still was both within the power and the duty of Parliament to meet any great evils or difficulties of this kind, and to provide for them by its general authority. With respect to these cases of privilege in particular, it could not be denied that when difficulties had been found, the Parliament had provided for them by enactments, declaring what was the law. In the commencement of the reign of James 1st, when it was found that the warden of the Fleet was unwilling to discharge from prison a Member of that House, stating that he feared he should have to pay the penalties for an escape, although the House of Commons interposed, and obtained the release of the Member, still he did not think it inconsistent with the maintenance of its privileges, nor a dereliction of its high duty, as one branch of the Legislature, to pass an act, providing that all suits brought against Members should revive when Parliament should cease to sit, depriving Members of 954 exemption from suits; and, secondly, that no sheriff or other officer should be liable to any punishment for discharging from custody a Member that was entitled to the privilege. After the resolution, when the Members of the House, and when even the Speaker had become liable to actions and prosecutions fordoing their duty in that House, the Parliament had declared, by legislative enactment, that no person should be called in question for any proceeding within the walls of Parliament. So, likewise, when it was found in the course of experience that the privileges which were possessed by the Members of the House, that the personal privileges, such as that exempting their servants from suits for the recovery of debts, could be dispensed with, without doing the least injury to the efficacy of Parliament, the House agreed to several acts, the latest of which was the act of the 10th George 3rd, which allowed the suits to proceed, and which had limited these personal privileges of the Members. All this showed that when there was sufficient cause, and when there was a good public motive, the House had not hesitated upon all suitable occasions to derogate from the general privileges of the House. At the same time he knew that it might be said, that when they entered upon a course of legislation on one privilege, various other privileges might be attacked, and they would be ultimately obliged to resort to legislative enactments for all. He did not, he admitted, feel certain that such attacks would not take place; but there were none of their privileges which were so much exposed to attack as this particular privilege of publication—at all events, that was the particular privilege now called in question. On many of their privileges he saw, by the judgment of the Court of Queen's Bench, there was no difference between the House of Commons and the courts of law: there were many privileges which were ascertained, and which were generally allowed, as Mr. Chief Justice Pemberton had allowed certain privileges of the House of Commons, when he was called to their bar to answer for an offence against the privilege of the House. If, however, there should come to be any further question with the judges of the Court of Queen's Bench—if they should not be disposed to allow that the House had the right to decide what the privileges of the House were— 955 he should be ready to maintain, in that case, what he had maintained in the present case, that the House was, and of right ought to be, the judge of its own privileges. The right hon. Gentleman differed from him upon that subject. It was one on which he thought there was a great deal of popular misapprehension. It was said that the House could declare anything that it pleased to be privilege, and it was presumed that anything that was most extravagant was within its power, and that the House would claim it as a privilege. This was a most exaggerated way of putting the question. It had been said, equally extravagantly, by counsel before Lord Ellenborough, "Does your Lordship say, that the House might take any person into the lobby and there execute him?" To which Lord Ellenborough replied, "In such case the courts would do their duty." If a person were convicted of a capital crime, and were sentenced to death, he might be legally executed; and the counsel might just as well have asked whether a person not legally convicted could be executed. And what he meant when he said that the House had the power to judge of its own privileges was, that it could best judge what privileges it was necessary to assume to enable it to discharge its duty. He might be asked what there was to check and to limit this power, and he must answer that there was the same check and the same limit as there was upon all the different bodies in the state; there was the same check and the same limit as there was on the prerogative of the Crown; the same as there was on the power and the authority of the House of Lords, or of the Court of Chancery, or the courts of common law, namely, that having certain powers necessary to maintain the particular functions of the body, it must be supposed, if it were a constitutional proceeding, that there could be no extravagant assumption of powers, going beyond the necessity of the case. If this were so, the case was clear, there was no difficulty in deciding the question whether the House of Commons or the Queen's Bench was the proper judge of what was necessary for the due performance of the duty of the House. He had no hesitation in saying, that it was the House; if the House was perfectly conversant with the business which it had to perform, it was aware from day to day of what was neces- 956 sary to perform that duty, and it was more likely to come to a correct decision upon this question than the Court of Queen's Bench. It might be said on the one side, that the House of Commons would carry this power of judging what were its own privileges to an excess, and it might just as well be said on the other side, that the Court of Queen's Bench would be most likely to limit what was really necessary. Therefore, whatever they did with reference to this point, they would not get rid of the power essential to their functions. Elected as that House was by the people, and as they were threatened the other night by an hon. Gentleman, that that House would have to go back to the people to give an account of their proceedings, he did not think that any act of exorbitant tyranny would ever be exercised by the House in defence of its privileges. He now came to the measure which he had to submit to the House; he did not intend to propose a measure that would impose any restrictions on the power or right of publication by that House; on the contrary, he should take care that it was stated in the preamble of the bill, that the privilege of the House, as well in this as in any other respect, was only known by the interpretation of the House itself. He intended to propose that publications authorised by either House of Parliament should be protected, and that merely the certificate of such publication being authorised, signed, for the House of Peers by the Lord Chancellor, or by the Speaker of that House, and for the House of Commons by the Speaker, should be held to be a restriction of any proceedings for such publication in any court of common law. That was, that any person having the authority of either House of Parliament for the publication of any paper, in case of any proceeding being instituted in any court, that a certificate of this should be sufficient to stay all proceedings by a mode which was described in the bill he proposed to introduce. He would not proceed to explain the mode by which it was intended this should be done, for he feared if he entered upon an explanation of the legal proceeding, he might lead hon. Members into error. He, therefore, thought that it would be better for him to abstain, and to be allowed to introduce his bill, and let hon. Gentlemen see the details of it. The object of the bill, he repeated, 957 would be to give protection in a court of law to the publications of either House of Parliament, and this not merely during the time Parliament was sitting, but during a recess or dissolution. He did not propose to limit the right of publication, for, as he had said before, he agreed that it was essential that they should maintain it to the fullest extent; but if he could give greater security than before to the publications of the House, by the proposition that he was about to make, he should be extremely glad. He was anxious that the authority for such publications should be maintained in the House itself, by the means that he proposed, as he thought that the functions of that House were of too important a character to be submitted to any other tribunal. He would not say a single word on what had so often been dwelt on in the discussions on this subject—namely, that the House should have the right and the power of publication, for he believed that they could not beneficially exercise their functions without the right of publication. He, therefore, should only now ask for leave to bring in a bill, hoping that it would be the means of putting an end to the evils which were now experienced by the House; and, after what had passed, he did not think that it was too much to ask the House of Lords to concur with them on this subject. He was sure that the House of Lords must be aware that this conflict in which the House of Commons was engaged might be injurious to the other branch of the Legislature; and with regard to the publications of the other House, although they might not now be called in question as those of that House had been, still persons might have recourse to these vexatious actions against the servants of the other House for publications authorised by it, and it should be recollected, that one of the publications of that House which had been threatened with an action was a reprint of a document of the House of Lords, and arose out of the examination of witnesses who gave evidence before a committee of the other House. The House of Lords only did their duty, and proceeded in the investigation in question with the view of giving information to the people of this country. The evidence was not to be confined to the House of Lords or to the House of Commons, but it intended to give information to the country as to the state of New Zealand, so that those who might feel dis- 958 posed to emigrate might be made acquainted with the state of things there. It, undoubtedly, might be made a ground of action against that House, as it was threatened against this House, that the publication containing this information, involved a libellous attack upon individuals. He thought, also, that the committee lately appointed on the subject of the printed publications of the House, would, in its report, lay before the House all the facts of the case with regard to the publications, and he believed that the House would be satisfied that means were taken practically to place a check on the publication of works of anything like a libellous character printed under the authority of the House. The House would find that they placed checks on the publication of libels, and when the report was laid on the table, it would see what these checks were, and how they were to operate, before the House sanctioned the publication of papers, and it would be for hon. Members to say whether these checks were effective or not. He would not occupy the time of the House at greater length, but conclude with moving, that leave be given to bring in a bill to give summary protection to persons employed in the publication of parliamentary papers.
§ Sir E. Sugden
would not detain the House for more than a few minutes, while he expressed his opinion on the motion just submitted to the House. He was not at all satisfied with the explanation of the noble Lord as to the course that he proposed to adopt with reference to the publications of the House. The noble Lord had given notice of his motion as an amendment to the one which he had intended to submit to the House; and he had been induced to give way to the noble Lord. He was by no means satisfied with the statement of the noble Lord, who concluded with telling the House that the Printed Publications Committee would report on the facts to the House. Now if he had not been stopped by the noble Lord's announcement, he should have shortly stated what they were. But, he would now ask, was this Committee prepared to report on measures which should be adopted, that would afford security against the characters of persons being attacked in the publications of the House? The Committee would only look to the nature of the publications, as they would give information to the House, and to the number that would be 959 necessary; and they would not examine the character of the publications, independent of the nature of the information, or of the number required for distribution and sale. There could be no doubt that the primary object of ordering the sale of parliamentary papers was to save expense, without regard to the character of the publication. The noble Lord had completely misunderstood him as to the right of publication; he had never disputed it; all that he wished to see was, the publication of papers conducted with the greatest possible caution, and within the strictest forms. He feared the public would think that they did not intend to assert or to adhere to any such principle, and that they would have no regard to anything like a proper or sufficient caution in the publication of their papers. The noble Lord stated that there were many mistakes out of doors as to the power they claimed, for all, he said, that he asked was, a sufficient power to carry on the business of the country. In the resolution of the House in 1837, there were no words that would justify any such interpretation as was assumed by the noble Lord of this rule. What were the words of that resolution?That, by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon. That for any court or tribunal to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament thereon, is contrary to the law of Parliament, and is a breach and contempt of the privileges of Parliament.There was no limitation, then, of the right of publication, but here was a positive declaration of the House that they had a right to publish what they thought fit, and of this assumption of right the people of England were afraid. It was not fair to the public that this extraordinary claim of the right of publication by the House of Commons should be sanctioned, or that merely an announcement of it should stop all proceedings in any court. He admitted that there might be extraordinary cases where the liberties of the country were at peril, where the extreme right of publica- 960 tion might be necessary; but it never was the law of Parliament, or the law of the land, of which the law of Parliament was a part, to deal with these extreme cases as of common occurrence. The noble Lord, in his speech, endeavoured to explain away this resolution; but he left his resolution still in force, pregnant with all the dangers that would continue to result from it. The noble Lord said, that if they allowed these contests to go on, they would greatly endanger and peril the other privileges of the House. He did not object to a legislative measure on this subject, but he objected to the exercise of the great power, the possession of which was claimed by the House with regard to publications, until they framed satisfactory restrictions which would have the effect of securing a guard against improper publications by that House. With respect to Mr. Stockdale, he must observe that it was an unfortunate case to try the question of their privileges by, for there was no doubt he took advantage of the situation in which he saw the House placed, and he had not been damaged in the slightest degree by the publication in question. He felt convinced that no jury, on the merits of the case, would have given damages for a libel. He entertained no sympathy whatever for Mr. Stockdale, but there was a great principle involved in the matter, independent of the case of any individual. He would only add, that he trusted that the noble Lord would adopt some means of affording something like security against the privilege of that House being made the means of protecting improper publications, and he felt that this would not be the case by the bill which he proposed to introduce.
§ The Solicitor-General
rose, shortly to state to the House why he found it to be his duty to oppose the motion of the noble Lord. He entertained no doubt but the House would credit him when he stated, that all his inclinations and wishes were, that he might be able to support the noble Lord and the Government of which he was a member. He felt this the more strongly, as he had so lately been called upon to take office under them, and he did so in perfect conformity with his inclinations and feelings; but he also felt that his duty as a Member of Parliament, was paramount to his duty as a humble member of the Government. Therefore, under the influence of a sense of duty, and feeling that duty to be imperative on him, he felt that he could not conscientiously discharge that 961 duty, without rising to state his objections to the adoption of the course that night proposed. He could not but be sensible of the extreme difficulty of the situation in which the House and the Government were involved in connection with this subject, for it was the duty of the latter to maintain, in every possible way, the privileges of the House. He was anxious, while he endeavoured to guard them against doing anything prejudicial to the public interests of the country, to abstain from offering anything likely to embarrass the course of the Government; but after reflecting on this subject, he could not but feel the most painful apprehension as to the result that he feared would follow from the course proposed. He could not but feel strongly, because he believed that the Government was mistaken on this subject, and that the measure that night proposed, so far from relieving them from the embarrassment in which they were placed, would tend greatly to aggravate and increase that embarrassment, and also tend to inflict a deep and permanent wound on the privileges of that House. The proceedings which had taken place on the part of Stockdale, would by no means be prevented in consequence of an enactment on the score of asserting their privilege; for they had already determined that the power was in themselves to vindicate and protect their privilege, and he did not believe that this was the proper time for them to agree to such a course as that proposed. He placed great confidence in the opinion of his right hon. and learned Friend opposite, but he was sure that his right hon. Friend would excuse him for saying, that having paid some attention to the subject, he could not help entertaining the opinion that the resolutions which had been alluded to, were well-founded, and were essential to the preserving the legislative power of the House. He was prepared to shew that they were not only well-founded as he believed, in parliamentary law, and that they could be supported by the sanction of the greatest constitutional authorities; but that the maintenance of the privilege involved in the resolution, was essential to the due discharge of the functions of Parliament; and he did not go one iota beyond what he believed to be absolutely essential when he asserted this. Gentlemen who did not look to the consequences of their proceedings, might look to the propriety of limiting these resolutions. He, however, begged the House to look to the proceedings 962 in the Court of Queen's Bench, which gave rise to these resolutions. When the first action was brought, the House was called upon to vindicate its privileges. They, in consequence of the proceedings then taken, adopted the resolutions which he contended were in conformity with the first principles of parliamentary law. He did not think that this was exactly the opportunity of going into this question; but he contended that the principle involved in them was essential to the House. He would pass them by for the present, but he contended that they could be maintained without the bill proposed by the noble Lord, which, so far from being calculated to relieve the House from the difficulty in which it was placed, would, he was convinced, involve them in proceedings of an embarrassing nature, far beyond any thing that would be gained by it. He believed that the effect of it would be deeply and permanently injurious to the privileges of that House and to the public. On the first action, as he was about to state, a few months since, the House chose to plead in bar their privileges, and that the acts or publications that Mr. Stockdale complained of, were performed under the sanction of the privilege of that House. That plea was overruled. He entertained great respect for the opinion of the Court of Queen's Bench, but as an independent Member of that House, forming an opinion on part of the law of Parliament, he did not hesitate to express a confident belief, that that judgment was wrong and unfounded. He was, therefore, only anxious that the House should not do anything that would appear to adopt or sanction that judgment of the Court of Queen's Bench. That court stated that it did not consider that the order of the House was any defence, and that it could not be pleaded in bar to an action. He, therefore, cautioned the House to take care, since that judgment had been pronounced, that they did not adopt any course by which it might appear that they gave judgment against themselves in pronouncing such an opinion as admitted in any way the validity of that judgment. The bill proposed by the noble Lord, had for its object the stopping, by a summary proceeding, any actions that might be brought for publications authorised by the House, and when they enacted this, did they not virtually admit, that in the former case the plea of the privileges of that House, was not a plea in bar to an action? Did they not admit that the Court of 963 Queen's Bench had a right to overrule that plea, which was only put in at the third stage of the action, instead of coming at a very early part of it? By passing a legislative measure to stop future proceedings in a summary manner, the inference would be that the House admitted that it could not set up its order as a plea in bar, but that it was found that something further was necessary, and that the House must get a legislative authority to enable it to stop their proceedings. He was sure that the noble Lord by his bill did not intend to affect, in any way, the privileges of the House. The noble Lord thought that by resorting to a legislative measure, the House would only sanction its former judgment, but he contended that by it, the former decisions of the House would be impugned, and that its privileges would be endangered. It would be considered that there was no stability in its judgment, and that it looked back with some degree of doubt on its former proceedings. The conclusion would be, that they would not have left the judgment of the court unimpugned, if they could have dissented from it. Therefore it was that he contended that the introduction of the bill into the House, would only tend to increase the present embarrassments. The bill, as it appeared to him, when he considered the nature of the judgment of the court, was calculated to increase, and encourage, and give rise to attacks on their privileges. He did not believe that many Members of the House were precisely aware of the numerous instances in which privileges were now conceded to them, and of which the public had the benefit, but which might be called in question. How many important acts of legislation in that House had passed by small majorities? The Act of Settlement passed by a majority of one. How easily might it happen, when a debate was likely to take place, if Members of Parliament were liable to be subpœnaed to the counties of Northumberland or Cornwall, that parties might withdraw a few of the most efficient Members? How often would one person or another be disposed to summon some right hon. Baronet, or some noble Lord to a distance on certain occasions? It was not disputed now—the question had not arisen regarding the exemptions of Members of Parliament from answering such summons. But Members might be called to serve on juries—they might be made liable to serve the office of sheriffs, There was an infinite variety of 964 offices from which they were exempted by Parliamentary privilege—not for the individual benefit of the Member, but in order that the public service might proceed. In every one of those instances the question of privilege might arise, and on the most important occasions. Had they a right to call for papers? Had they a right to summon witnesses? Had they a right to the exemptions from various offices? But it would be endless to repeat the instances in which questions of privilege might arise. A. refused to answer a question, or a party refused to produce papers, or refused to attend. All these might give rise to discussions in courts of law, where the jugdes should judge of the necessity of the examination of the witness, of the relevancy of the papers, and of every other circumstance which could be connected with the discharge of Parliamentary duty. Let the House not fancy that while Parliament had been deemed paramount—while that had been conceded for ages which the Court of Queen's Bench denied—conceded, too, by the brightest names that adorned English history by judge after judge—that while the House of Commons was deemed co-ordinate with the House of Lords, superior to the courts of law, and judges of their own privileges—let them not fancy that what they possessed under these circumstances they would retain when their position was changed—let them not fancy that they had a fee simple in all their privileges, when they were only tenants at will of this one. The Court of Queen's Bench had displaced the constitutional position of the House. That House was no longer, according to the judgment of the court, a co-ordinate authority with the House of Lords. That balance and constitutional check, which had been the pride of those who had investigated and expressed opinions on the British Constitution, was gone. If that House might have every one of its privileges decided by the House of Lords, the independence, and honour, and authority of the Legislative body was diminished. It was important that respect should be paid to the courts of law who executed the law. It was not less important that respect should be paid, and dignity enjoyed by those who made the laws. He only regretted, when he looked back to the language expressed in the House, to see that those who valued old institutions, and above all valued the institutions which formed the British Constitution, should have forgotten that the 965 House of Commons was one of those. With a House of Commons subordinate to the House of Lords, the Constitution was lost—the best safeguard was gone which had convoyed their liberties through times of the greatest danger and difficulty, in which the Constitution would have perished but for the authority of the House of Commons. They were about passing an Act of Parliament, leaving untouched the judgment which had displaced them, which tended to destroy the respect which gave effect to their acts, by making them subordinate to the lowest court of justice in the kingdom. What was it that invited such men as the country had reason to be proud of—men who adorn the House—to become its Members? It was the rank, and station, and authority of the House. Alter the Constitution—change the condition of the House, and it would cease to invite men of that class. It was from its importance, its rank, and station, that all men were ambitious to become Members of the House. He said, then, that whatever was its present condition, let but a short time pass, and let the judgment of the court receive the sanction of the House—let the House become subordinate to the House of Lords—remove it from being what it had ever been—the check, control, and balance of the other power of the state, and it would sink in esteem and dignity, as it must do when every one of its own resolutions regarding its own powers would be liable to be reversed by the lowest court of justice in the kingdom. His objection to the bill was, that when they did not venture to assert their privileges—when they did not express the slightest dissent from the judgment pronounced by the Court of Queen's Bench, they in effect affirmed that judgment for practical purposes. He knew very well that there was no reason to hope or believe at the present moment that a bill which was not open to these objections would pass both Houses of Parliament. That in his mind was the reason why they should not legislate at all. He was anxious—most anxious, desirous, if possible, to put an end to the present state of difficulty and embarrassment by legislation, if a settlement could be obtained consistently with the usefulness, by which he meant the authority, the dignity, and the station of the House. He believed that no such bill could be obtained, but he would not on that account take a bill pregnant with more difficulty and danger than it was intended to remove, He conceived that no 966 man could look at the state of circumstances which now existed, without perceiving that the course of proceeding by legislative measures must most seriously affect the permanent station and character of the House. He had before occupied the attention of the House at such length that it was his most anxious desire to spare them on the present occasion, and therefore he only wished to call the attention of the House to those matters which impressed his own mind, and which led him to think that he was only discharging a duty in opposing the bringing in of the bill. He conceived that they were doing a great evil in bringing in such a bill. In the first place, he did not believe that it would pass even in its present form. He believed it would undergo alteration, which in all probability would render it more objectionable. He did not believe it would come back to the House such a bill as the noble Lord would himself accept. He could not consent to send up a bill which he knew would be the subject of discussion not calculated to increase the dignity of the House—not calculated to put down resistance to the House, but calculated rather, though no such intention might be entertained, to stimulate resistance, and to encourage defiance in those who were disposed to resist the authority of the House. He considered that, the House being at present divided as it was in opinion on this subject, that sending up a bill to be the subject of discussion was not likely to ease or terminate their difficulties, but to increase them. There was no ground to anticipate with any such degree of certainty as would warrant their increasing the hazard of their position. But suppose the bill passed. Suppose it passed in u shape which the noble Lord, consistently with his anxiety to preserve the honour and usefulness of the House, could recommend to the adoption of the House. If he was at all right in the consequences which he ascribed as likely to follow from this bill, they would have announced by it that they required other powers than they possessed to maintain their privileges. His opinion was, that they were asking this in respect of the privilege least likely to be called in question. His right hon. Friend who had addressed the House with the caution that belonged to his intelligence, spoke of the care they ought to take regarding their publications. Much had been said regarding the want of care on that subject. But those who made such charges would do 967 Well to remember that no complaint had been made in a course of two hundred years, the House having, during that time, passed through inquiries of the most important, and, in many cases, of the most distressing nature: having examined into abuses of the South Sea schemes, of the slave-trade, of municipal corporations—into all the subjects which filled their voluminous papers, containing so many of a criminatory nature, and all published with a view to legislation. Surely something might be said on behalf of the House, when it appeared that the only individual who, in a course of 300 years, had complained of its publication was Stockdale, regarding whom there had been a verdict, that all that was said of him was true. He could not help thinking that this circumstance gave pretty good assurance that there had not been so much falsehood—there had not been such an over abundance of slander—published by the House as some folks were apt to imagine. He could conceive very many privileges much more likely to be challenged than the privilege of publication—such as that of examining witnesses, or calling for papers. If these privileges were challenged, how would they proceed? The Court of Queen's Bench had placed them in a new position. Three judges thought that what was necessary for the discharge of the duties of the House was privilege. Mr. Justice Coleridge, however, said, it was not enough to make out that power was necessary. They went also to show that it had been allowed—by allowed, meaning anciently allowed. They were then told by one of the judges that they had not the power necessary for the discharge of their functions, and by the others that what was required for the performance of its functions belonged to it as privilege, but it lay with the judges to decide whether a privilege claimed was necessary or not. He had taken the opportunity of moving for a return, for the information of the House, of the writs of error brought from the judgment of the Court of Queen's Bench in the last four years. There had been twenty writs of error brought in that time, and ten judgments reversed, judgments in which the court had been unanimous. What a bonus did this hold out to those who were disposed to enter into a legal contest with the House! What uncertainty would attend the decisions of the court, and what an opportunity of accomplishing their ends would be afforded to those disposed to resist the House? It was no mat- 968 ter about the result—whether the court sustained the privilege or not—the time was gone by when the information which the House might want was required, and they would be compelled to act without it. The great evil of uncertainty must attend every step of their proceedings. A great bounty would be afforded to those who were disposed to resist every step, in the hope of succeeding by the judgment of some court or other in the kingdom. There would be no certainty in any one of their privileges, and a privilege so little questionable as that of the circulation of paper having been attacked, it was reasonable to expect that their other privileges would be called in question. He thought such attempts would be encouraged by the bill, because it would have the effect, to a very considerable extent, of confirming the judgment. But how did they stand at that moment? They might stop Mr. Stock-dale's action in the manner proposed, by lodging a certificate forthwith, and under the authority of the Act, legal proceedings would be stayed; but how did they stand with regard to Mr. Howard, who had brought an action against the Sergeant-at-Arms? Would the bill stop his action? He did not so understand it. If it would so stop him, and if the bill were made general, there would be no objection to it, but Mr. Howard would remain, and they would still have all the difficulties, all the embarrassment, all the waste of time in discussing and maintaining their privileges, which they had without the bill. They would be relieved from none of the discussions which for great public purposes they wished to avoid by the bill. He could not help thinking that Mr. Howard's would not be the only action which would be brought. Whether the occasions existed at that moment which might give rise to actions he would not say, but if the opposition and resistance to the privileges were to lead to a violent contest with the House of Commons the sooner they made a determined stand the better; there was no use in delaying what could not be avoided; and it was better to show at once, by this conduct, that they were determined to exert the powers which the Constitution gave them. He would only repeat, regarding such powers, that there was not a court of justice in the kingdom that could or did exist except mainly by them; and the Houses of Parliament had only existed by them. The pressure of personal imprisonment was the most important and extensive means by 969 which they were protected. To say it was not sufficient with regard to the House was to speak contrary to experience, which had manifested its sufficiency in the House of Commons hitherto, as well as in every court in the kingdom. The question in which they were involved had arisen from no fault of the House. It could not be avoided in the performance of their duties. The House had no reason to expect that an attack would be made on such an exercise of their power by the Lord Chief Justice of the Queen's Bench. When that attack was made, the House had no choice, no resource, but to meet it by a prompt declaration. And what were the grounds on which the court rested its judgment? Mainly the dicta of other judges uncontradicted by the House. They said it was impossible that Parliament would have passed them by, unless it had been satisfied that they were correct. Look at the striking judgment of the Lord Chief Justice. If they passed by that, would it not be a ground for asserting that it was correct also? The House took the course which it had taken from its duty to the public, for whose benefit the privilege existed—most of whom little perceived the consequences which were involved—little perceived that the question was, whether the independence and efficiency of the House of Commons should continue to exist. But let them look to the effect of making one branch of the Legislature subordinate to another, and to all courts of justice, and they would perceive the true character of the contest. He said that House had acted as tenderly as it could in the maintenance of its privileges. It had not in any one commitment gone further than former Houses of Commons, and those not in bad times. He did not know whether the functions of the House were less important now; but he would venture to assert that their efficient existence was never more seriously threatened than at that moment. He would repeat that he was ready on a proper occasion to meet the right hon. Gentleman (Sir E. Sugden) and show that the House had acted tenderly in the course which it had pursued. On the ground, therefore, that they could not legislate effectually even on their own views—that they could not by legislation relieve themselves from the embarrassments in which they were involved—that they had no resource but a firm reliance on their own power and authority, on the ground that the bill, while it would relieve them from 970 none of their difficulties, would greatly increase some, and create new ones,—he submitted to the House that it was inexpedient to attempt meeting those difficulties by legislation. It was a course which presented only fallacious hopes of escape. In this instance, as in most others, the most direct and firm mode of meeting the difficulty was the surest path to safety and honour.
had not at any previous time felt justified in trespassing on the attention of the House, even by a single observation on the subject of privilege, but had sat during almost every discussion a silent but by no means inattentive or un-anxious auditor of what had taken place. The present time, the hour of the night, and the deference which he felt for the hon. and learned Gentleman who had just sat down, admonished him to be as short as possible in stating to the House simply the grounds of the vote he was about to give in favour of the measure which the noble Lord had proposed to introduce. He was well aware that the motion was liable to attack from both the one and the other side of the House. He had not listened to the discussions, and still more he had not attended the Committee which had been sedulously and laboriously investigating the case up stairs, without perceiving distinctly how many plausible arguments, how many sound reasons might be urged on the one side and the other; and how important it was, for the best interests of the country, that they should come to a sound conclusion, free from passion and prejudice, on the subject; and, at the same time, how difficult it was, nay, how daily and hourly it was rendered more difficult, by circumstances pressing upon them, irritating their feelings, and warping their judgments, to come to a sound, unprejudiced and impartial conclusion. The noble Lord had been attacked by Gentlemen sitting upon both sides of the House, but upon most opposite grounds, and arguments of the most conflicting nature had been made use of. The noble Lord's proposition had been opposed alike by those who wished to preserve, and those who wished to abandon the privilege of publication, and it was really most difficult to frame arguments to meet the opposite views of Gentlemen with such different notions. But he confessed at once, without any hesitation, that he felt as strongly as the hon. and learned Member could do, the absolute necessity of maintaining the privilege of 971 publication, and of preserving it in full action, subject only to that discretion and restriction which the House might think fit to impose upon its own powers of publishing information on those subjects which, being the grounds of legislation, it was its duty as a representative and legislative body to place before the cognizance and the judgment of the public. No man could contend more strongly than he was prepared to do for the full maintenance of the privileges of that House, and if he thought with the hon. and learned Gentleman, that the adoption of the bill of the noble Lord would tend to destroy those privileges, to defeat their own objects, and to superinduce a danger more prejudicial in its consequences, the House would find him as prepared to oppose the noble Lord, as he was now prepared to support him. At the same time he did not agree with his right hon. and learned Friend, the Member for Ripon, in thinking that it was unfortunate that the case of Mr. Stockdale should have been the one on which the question of privilege had been brought to issue, because if the issue had been taken upon a weaker case it would then have been said, that upon such a case no practical question would arise, as no jury would give damages in such, nor would the Court of Queen's Bench rule against the course pursued by the House of Commons. For this reason he did rejoice, that the question had been brought to issue upon precisely such a case as the present. The House was proceeded against by a man of notoriously infamous character on account of statements published in a document which had been ordered by the Queen to be laid before both Houses—a document which was nothing less than a report of commissioners who had investigated gross abuses, in answer to allegations that such abuses did not exist, and to a challenge to produce the facts in proof of such allegations. Was the subject of these investigations an important one? No; for it related to no less a subject than the management of the principal prison of the metropolis. What was the effect of the report? That in the hands of the prisoners in that prison, had been found obscene books. Did the matter rest there? No; for a public body came to that House with an allegation denying the facts and questioning the report of the Commissioners; and in consequence of that denial the, Commissioners returned to the House a further report, in which they vindicated the accuracy of their former report, and stated 972 that an obscene publication of a person named Stockdale, who was well known, had been found there. Upon this justificatory re" port of the commissioners proceeded subsequent legislation. If, then, in a case so strong as this, the Court of Queen's Bench had thought fit to step in and to say they did not admit the right of the House to publish what was so essential to the public good, but classed such publication with an ordinary libellous letter of an individual, without inquiring whether the publication was justifiable or not—if each individual ease of publication was to be subjected to the investigation of any tribunal in the world, there was an end, and for ever, of their independence. With every respect for the laws, and for the authority of courts of justice, he at the same time entertained a respect for the authority of Parliament, and for the privilege which they exercised, not for individual advantage, but for the instruction of the people, to whom it was most essential to know on what grounds their representatives in the Legislature in their behoof, and for their benefit, proceeded in their legislation. Of the privilege of publishing information to the extent which the House might think fit, he would not abate one jot—he would maintain the rights and privileges of Parliament in that respect to the utmost. But while he did this, did he deny that Parliament ought at the same lime to exercise the strictest vigilance as regarded the use made by them of that privilege of publication? On the one hand, he maintained the House of Commons ought to have the privilege of publishing defamatory matter, where the publishing of such matter was for the public good, in the same manner as he who gave a character of his servant was protected from any consequences, even if that character were libellous, because such statement came under the class of privileged communications. So Parliament might be and was called upon to become a wholesale libeller in consequence of the duties it owed to the public; and in like manner it must be protected against the consequences of pain inflicted on individuals, not maliciously or wilfully, but in discharge of a public duty. Nay, he maintained that the duties of Parliament could not be performed without this privilege; for their most important acts were frequently founded on a succession of libels, in which individuals might be subjected to injury or punishment, Should be, then, submit such. 973 a privilege to the judgment of any court in the world? With every possible respect for the judges now presiding in the Court of Queen's Bench, he said that they ought not to subject a privilege of such high importance to the possibly political views of any particular chief justice? As to the powers which Parliament ought to exercise, he agreed with the lion, and learned Gentleman that if any concession were admitted, the next privileges that would be attacked would be their freedom of speech, and afterwards that all the other privileges which they enjoyed, in order the better to enable them to perform their duties to the public, would be impugned. But he did not agree with the right hon. Member for Ripon, that no care had been taken by Parliament to impose a check on the possible undue exercise of the power of publication. The right hon. Gentleman had to-night given notice of a motion for the appointment of a committee to inquire whether any restriction was imposed upon the publication of printed papers by that House. This was an alteration of his original motion, for on a former day the right hon. Gentleman had given notice of a motion to rescind the order for the publication and sale of the printed papers. Now he was not about to argue with the right hon. Gentleman, that the public and general sale indiscriminately of the printed papers of that House did not produce an effect upon the public mind with regard to the bearing of this question. But at the same time the right hon. Gentleman would not deny that, as regarded the strictly legal offence, such as constituted a pretext for the interference of a court of law, the publication by public and general sale indiscriminately did not at all differ from the mode of publication which took place prior to the year 1834, when any Member could obtain half-a-dozen copies of any publication and send them down into the country. He quite admitted the distinction in the popular sense, but maintained that in a legal sense the old and the new mode of publication were one and the same. He regretted the course taken by the right hon. Gentleman, in giving a notice which was only for the present suspended, to inquire into the practice that had existed and did exist, the restrictions that bad been imposed, were imposed, and which ought to be imposed. It was only a few days ago that the right hon. Gentleman withdrew from a committee appointed expressly to inquire into the same subject, and if he 974 had remained on the committee, he would have known that they gave the subject their especial attention. The right hon. Gentleman, however, did not object to the bill, provided some restriction were placed on the sale of the printed papers. That proposal was nothing less than a begging of the whole question. But suppose such a restriction were imposed by the present House of Commons, what was to prevent some future House of Commons from withdrawing it? The right hon. Gentleman thought, that when he had got that House to impose a restriction, he could then get an act of Parliament. Such a restriction, however, he did not think necessary. Whatever might now be the popular impression on the subject, he did not doubt that when the report of the committee in question was published, they would see that every precaution that could be taken, was taken, to prevent the infliction of unnecessary pain upon individuals. No man could feel more strongly than he did the evils entailed on individuals by some of the statements contained in the printed publications of the House of Commons; but at the same time he must say, on balancing the evils, he could not but think that the injury to individuals was outweighed by the advantage conferred upon the public generally by the exercise of the privilege of publication. He would now return to the hon. and learned Gentleman opposite, with whom he was prepared to assert to the fullest extent the principle of publication. The hon. and learned Gentleman called upon them not to pass the bill, first, because he did not think that it would produce the advantages expected from it and, secondly, because of the ulterior consequences arising out of the resort to a declaratory act. The hon. and learned Member said, that the judgment of the Court of Queen's Bench was wrong. He hesitated to pronounce judgment upon those who were so much better qualified than he was to lead the House aright; but he hoped that, sanctioned by the opinion of the hon. and learned Gentleman, and of other eminent lawyers in the House, he might be permitted to say, that in his judgment that decision was as wrong in law as he believed it to be unsound, constitutionally speaking. But, said the hon. and learned Gentleman, take care that you do not by your proceedings now confirm that judgment of the Court of Queen's Bench. The hon. and learned Gentleman, however, had failed to show how the bill proposed to be introduced by the noble 975 Lord went to confirm that judgment. There was not in the bill any affirmation confirming the view of the law contained in that judgment, nor was there any affirmation denying it. The bill of the noble Lord, simply admitted the importance of maintaining the privilege of publication enjoyed by the House of Commons; and, while it admitted the hardship to which individuals had been put, it confirmed by a parliamentary enactment the doctrine under which these individuals had been subjected to that hardship, and gave the House of Commons certain powers which enabled it to exercise that privilege without running the risk of inflicting more hardships upon individuals. Nothing could be more necessary than such a measure, in order to prevent the renewal of the necessity to which the House had been put of keeping the sheriff's in confinement. Of the many votes he had cheerfully given in support of the motion of the noble Lord on this question, for none had he voted with greater regret (while he admitted the necessity of the vote) than for that which condemned to confinement two gentlemen of unexceptionable private character, against whose general conduct no charge had been made, but who, from being placed between two jurisdictions, could not escape the dilemma of disobeying one or the other. Why did he vote for their confinement? He was reminded of the hardship of subjecting to confinement two persons whose only fault was that of obeying that which they conceived to be the law. But the authority of the House of Commons was co-equal with that of the court of law; and if it did not maintain its privileges it would cease to be co-ordinate with it. [Hear, from Sir E. Sugden.] The right hon. Gentleman cried "hear," but did he mean to say, if there was a contest between two co-ordinate authorities, one of whom had imprisoned the servants of the other, that if one of those authorities from a desire not to inflict hardship on individuals, gave way, that such conduct would not amount to a giving way by the party so acting to the other? Would it not subject the party so giving way to contempt? Why, this ground of hardship to individuals was alone reason enough for the interposition of the Legislature to prevent the repetition of such occurrences in future. He repeated, that he did not propose to abandon one iota of their privileges; but at present, though their privileges were great, their power of enforcing them was 976 very limited. Though during the Session they had an unlimited power of imprisonment, yet when the Session closed, that power ended; during the recess they had at present no power whatever to protect those who obeyed their orders. But for such a law as that proposed by the noble Lord, nothing could avert their gradually approaching that point where law ceases and the dominion of force begins. The continual exercise of their power of imprisonment could lead to nothing else, nor could any other result follow the painful conflict of two co-ordinate authorities, with powers pushed to the extreme; and it was for these reasons that he supported the bill, and was anxious to secure the House from the consequences. In what other way than by such a measure could the House continue to maintain their privilege of publishing? Their power of imprisonment extended only during the Session, and their only means of punishing those who had commenced actions and been instrumental in the receiving of damages during the recess was, by imprisoning them at the next meeting of Parliament. And how was this to be done? By committing every person who had been at all instrumental in bringing or conducting the actions—the plaintiff, the solicitor, the barrister, and, ultimately, the judges themselves. And after all the House must submit to be plundered and to propose a vote to indemnify their own officers out of the public purse. While punishing with the one hand, the House would be paying damages with the other. The bill provided for a due investigation into the nature of the papers published, so as to prevent the abuses that were likely to arise from the indiscriminate publication of Parliamentary papers; while, at the same time, it reserved within the breast of Parliament to decide what the extent of that restriction should be. The right hon. Gentleman the Member for Ripon did not see that the bill provided for the exercise of that restriction, but the effect of the bill was to enable the House to impose certain restraints, to be decided on by itself, upon the exercise of the privilege of publication. But the main effect of the bill was to remove one of the great objections of the people of England and the courts of law to the exercise of this privilege—the impossibility of duly supporting it without inflicting undue hardship on individuals who might be placed between two jurisdictions, The bill by confirming 977 (not giving) the powers claimed by the House of Commons, would enable the House to support those privileges, and at the same time give the judges a locus slandi. They would be able to say, "Here are privileges asserted, confirmed, and supported by law, and a course laid down which we are bound to obey;" and then would be removed the most formidable objection that had now been raised against this privilege. Whatever might be the result of this bill in another place—and God forbid that in another place there should not be sufficient temper, or good sense, or candour to deal with it with the earnest desire to come to a satisfactory settlement of it—at all events, they in that House would feel that they had done their duty; and while they maintained and enforced their privileges, they would seek at the same time earnestly to place them on the basis of satisfactory legislation.
§ Debate adjourned.