The Lord Chancellor
said, that he was about to take a step which, after being more than twenty-four years a Member of either House of Parliament, he had forborne to take, though God knew not from any want of occasion being afforded, but from that habitual forbearance which he had always exercised on this point. He was about to bring before their Lordships a breach of the privileges of that House, which, had it been committed against any other Member than himself, 893 he should have felt only the reluctance he had ever entertained at the principle of this kind of interference, but which, being against himself, he assured their Lordships that nothing but an absolute overruling necessity could have induced him to notice it; for, where the grossest falsehoods—the most palpable, apparent, and audacious falsehoods—concurred with the most despicable ignorance and malice, he thought he might venture to say, that it would have been perfectly safe for him to have done as he had heretofore done, and had never repented doing, viz., to have let the at-attack upon him pass unheeded, to have treated it with the contempt it deserved and he really felt, and to have contented himself calmly and quietly, as he had done before, with living over the calumny. Such might have been his course, such was the course he would have preferred; but he should not have read to the end of what he was about to lay before their Lordships before they would perceive, that he was left no choice upon the present occasion, and that those noble Lords who were kind enough to call his attention to the article in question, and which but for their kindness, he should never have seen, were right in holding that his taking notice of it was no matter of choice. He understood that in the same quarter there had been going on for the last six or eight months a series of systematic attacks against him, of a like nature to the present, directed to one object, viz., to misrepresent in the foulest manner (of which the present was a specimen), and to those acquainted with the facts sometimes in the most ridiculous manner, the whole of his judicial conduct both in the Court of Chancery and in that House. When the authors of these attacks—for he did not blame the miserable tools whom they had obtained to do their work—found that it was not true as they asserted, that it was false that the business of the Court of Chancery was in arrear, that, on the contrary, it was reduced to so low an ebb that he should be obliged to close the Court until November, excepting for two causes, in which the parties were not quite ready, and pass by the regular Seal days, an event which had never before occurred—when they found, that all the charges they brought about the backward state of the business in that House were equally false, for that the business there also had been reduced so low that inevitably no one cause of any sort or kind would be in arrear for weeks before the end of the Session—when 894 they found all these falsehoods cut away, and that they had no longer any ground of plausibility even upon which to found an attack, they invented one, of a most calumnious nature, severely bearing upon his character as a Judge, and as a Member of their Lordships' House, but one which he would not further describe, as they were about to judge of it for themselves. A cause, as their Lordships knew, had lately been tried in that House, in which, after hearing the opinion of the learned Judges, a unanimous opinion was come to. Having looked attentively into the case, made him- self master of the argument, attended to the opinion of the Judges, and looked closely into the authorities, he came down to that House and gave his opinion to their Lordships, and called for their judgment. Upon that occasion he gave their Lordships a very decided opinion, very clearly formed, and upon further reflection fully confirmed and confidently and boldly held by, that a more groundless writ of error never came before that House, and that their Lordships were bound in justice to decide against the appeal with costs, the costs not to exceed 350l. Having moved the affirmation of the judgment of the learned Judges, the entry was made by the clerk, as was usual, in the form in which it always was made, and according to a rule introduced in recent times, but which was firmly established before he had a seat in the House, and with which he had never, in reality, either in form or substance, interfered in the slightest particular, excepting to obey it. No one thing was said, or done, or withheld, with reference to the judgment given, the order of proceedings, or the entry made, but what was in the habitual, regular, and constant course of proceeding, and according to the literal forms of the House as daily observed in every case of the like kind that came before their Lordships. He would next proceed to read to their Lordships the comment that had been made upon these proceedings passing by the ribaldry by which it war introduced. Their Lordships would thereby see that a most serious accusation was made against him, that he, a Member of that House, a Judge presiding over its judicial proceedings, finding that he had done wrong in that capacity, had actually garbled the minutes, and falsified the entry of those proceedings. This charge was made in the most direct and unequivocal manner, although the interrogative mode was adopted He would read the article to 895 their Lordships, who would see that his statements were not exaggerated. These circumstances (the noble Lord read) are already, perhaps, known to and remembered by our readers; but what follows will surprise them, however familiar they may be with Lord Brougham's eccentricities.
He had not the slightest objection to plead guilty to the charge of eccentricity, if that offence consisted in going to business early in the morning, and continuing at it till late in the evening, and getting through all the business that was to be done both there and elsewhere; if that was eccentricity he had no objection to plead guilty to it. The article proceeded:
The Morning Herald
, which contains the fullest report of Lord Brougham's speech in moving the judgment of the House of Lords upon the case, states that Lord Brougham concluded in these words:—"I move, my Lords, that the judgment of the Court below be affirmed, with costs not exceeding 350l." And the Morning Herald proceeds to tell us that the judgment of the Court below was "affirmed accordingly."
The Morning Herald
is not alone. The solicitors, the short-hand writers, the Peers—(What Peers? Your Lordships are slandered also by this paper)—all concur in asserting that Lord Brougham moved, "that the judgment be affirmed," and that the judgment was "affirmed accordingly."
§ Now, how do we find the Motion of Lord Brougham and the acquiescence of the House recorded in the Journals of the House of Lords?
§ Thus—"Solarte v. Palmer. Further considered; and judgment thereupon POSTPONED sine die!"
§ (The word "postponed" printed in large capitals.)
§ Is it true, that the Lord Chief Justice hinted to the Lord Chancellor that the point which had appeared to the Lord Chancellor much too plain for doubt, appeared to the Lord Chief Justice far too dark for certainty?
§ Is it true, that a friendly functionary hinted to Lord Brougham that he had formerly been Counsel in the cause upon which he was now Judge, and that he had strongly advised the course in the one capacity which he coarsely condemned in the other?
§ Is it true, that upon the one hint, or the other hint, or both hints, Lord Brougham prohibited the insertion upon the Journals of the House of the Motion which had been made by himself, and the assent which had been given to it by their Lordships?
§ We cannot answer these questions; and we do not advise Lord Brougham to attempt an answer to them. We know, however, quite enough. Lord Brougham has done an act of such wanton oppression, of such cruel injustice, 896 that the Journals of the House of Lords must be garbled for the reversal or the concealment of it.
§ ("Concealment from the parties who suffered by it!" observed the noble and learned Lord.)
§ If there is one Nobleman in the Upper House solicitous in the very least degree for the dignity of his order this matter must be noticed without delay. If what we tell is true, Lord Brougham is unfit to preside in the Court of Chancery as a Judge, to sit in Parliament as a Peer, to move in society as a Gentleman.
§ (Then came a proposition with which he thought their Lordships would fully agree)—
§ If what we tell is false—there never was committed a grosser breach of privilege than that of which we are to-day guilty.
§ Therefore it was, as he had already told their Lordships, that be could not read to the end of this article without satisfying them that it was hardly matter of choice with him whether he would bring this matter before them. He was compelled to do so. With all his respect for the freedom of discussion—with all his good-will towards the Press of this country—with all his anxiety that every man's conduct, public and private, for he did not stop at his public conduct merely—with all his disposition to throw open his own public and private conduct to free canvass and inquiry, it was impossible for him to sit on the Woolsack without calling attention to this breach of their privileges. It was really painful to go back to this publication to answer the questions it contained; but he would do so. They were, indeed, as ridiculous as false. It was asked—"Is it true, that the Lord Chief Justice hinted to the Lord Chancellor that the point which had appeared to the Lord Chancellor much too plain for doubt, appeared to the Lord Chief Justice far too dark for certainty?" My Lords, said the Lord Chancellor—It is not true. "Is it true, that a friendly functionary hinted to Lord Brougham that he had formerly been Counsel in the cause upon which he was now Judge, and that he had strongly advised the course in the one capacity which he coarsely condemned in the other? It is not true. I know not to which functionary allusion can here be made. I know of no friendly functionary, or hostile functionary, or person or functionary, who is neither one nor the other, from whom I received any hint, excepting always a public newspaper, in which I saw it stated, that I was Counsel in the cause. 897 Undoubtedly it is true, that I was Counsel in the cause; but that was in a very early stage of it, and not when it was near the stage upon which alone a single observation is made in this paper. "Is it true, that upon the one hint, or the other hint, or both hints, Lord Brougham prohibited the insertion upon the Journals of the House of the motion which had been made by himself, and the assent which had been given to it by their Lordships?"—It is utterly untrue, scandalously false, wickedly libellous, and slanderous every one must see, and not more scandalous than it is from beginning to end an entire fiction. I know the origin of this, my Lords. It proceeds from some person who is ignorant of the forms of this House in judicial proceedings. You see how dangerous a little learning is. If this person had never known the forms of this House—if he had never dabbled in these forms—if he had not known so little, he would not have got his victim—his dupe, who has been prompted by his malignity—into this gross blunder. By merely looking at the Journals of the House he has been led into this gross fabrication. When the order is made, and your Lordships have agreed to affirm a decree, with a certain amount of costs, the costs are stated pro formâ, not to exceed 350l., but the real amount is left to be ascertained. 350l. is the maximum sum. The costs cannot exceed that sum, but they might be less; they might be 250l. or 200l. The judgment is afterwards entered up, together with the real amount of the costs. This great improvement, which was directed by one of my noble and learned predecessors, was made years and years before I entered this House. On all occasions, ever since this rule has been in force, the order has been pronounced as I pronounced it, but the judgment has never been entered up till the real amount of the costs has been ascertained. In every one case, I repeat, the judgment is moved to be affirmed with a certain amount of costs, but it is entered in the way I have described to your Lordships—"Judgment postponed." In the case of Solarte v. Palmer, the gentleman at the table, who, I have no doubt, will remember the matter better than I do, after I had moved that the decree be affirmed, made the entry in the usual way. That gentleman did not communicate with me in any way; not a word, nor a hint, nor a wink, passed between us. This has happened twenty times since I have been on the woolsack.
898 It has happened almost every day; the business never took any other course, and by no possibility could it have taken any other course. Your Lorships now see how these worthy and disinterested inquirers into my judicial proceedings—these maldroit adepts—these bungling, blundering libellers—who, with all the venom that can be distilled from their base and crawling natures, have not the common sense that even the lowest animals, who are endowed with such poisonous gifts possess, of running into their holes and concealing their deformity—have laid themselves open to every species of exposure. No man can regret this, but I do feel some regret for their unhappy victims. They primed their instruments with information, saying, "I had this from such a one—he knows a great deal, and it must be true,"—and then they wrote their own comments, or got their journeymen to write it for them. In this way has been ushered into the world this mendacious composition—as despicable and as malicious in the origin, as blundering in the execution, showing as great a want of common tact as of common honesty. All this is the consequence of the kind of machinery which I have stated to your Lordships. I do not look at it with asperity. In my mind, it produces no other feeling than that of unmeasured contempt. I can't pretend to say, that I feel injured; on the contrary, I am not wounded in the slightest way in any one of my feelings. So that, if that was one of the objects of the slanderers, they have totally failed. I must now say something respecting the advice which I am stated to have given when at the Bar, relative to this case, and which is alluded to in another part of this article. My Lords, I have made it my business, since I entered this House, to apply myself in the closest manner that I can to the duties which my situation entails upon me. Wanting the vast learning and the long experience of some of my predecessors, I have endeavoured, in assisting your Lordships in the exercise of your judicial functions, to make up for that want by deep and unremitted attention to the business brought before me; I am sure that no one who has had an opportunity of observing my conduct will fail to corroborate what I say. I have not adopted the usual plan of saying nothing when judgments were affirmed, and which had almost grown up into a practice. Before the decision of the Roxburgh case, it was the constant practice to say nothing on those occa- 899 sions when judgments were merely affirmed. Two of my predecessors have certainly given reasons for affirming decrees, but not often. I have, however, made it an invariable rule in all cases where intricate points of law have been involved, or where the question at issue has been of much importance, to give my opinion at length to your Lordships. I find, that it is more satisfactory to the suitors and to the Courts of Law regulated by the judgment of your Lordships, to adopt that course. I acted up to that rule on the present occasion; but, although I stated my opinion unreservedly, it did not, I am sure, betoken the slightest exasperation. I was in no way vexed by the time which this appeal occupied, nor by the attention which I gave to the arguments. It was your Lordships' time which was wasted. With regard to the statement that I on one occasion advised that this appeal should be made, I will premise, that I should be ashamed if, after having given a certain opinion when I was counsel, when I might have been blinded by some obliquity of view, I should feel myself; as a judge, bound to adhere to that opinion, however ill-founded. A counsel is apt to say, in the first moment after defeat, that he is right, and that the court is wrong, but let a month or six weeks pass away, and let him have time to reflect on that hasty opinion, and it is then more than probable that he will admit his error, and say there is not a shadow of a ground for adopting his advice. If I had been in such a situation, if I had advanced an opinion of that kind, I am sure I should have been the first person to say, that my advice was wrong, that there was not a word of truth in it, and that it must be wholly disregarded. I was counsel for Mr. Solarte when the case was tried at Guildhall; but I never complained of a bill of exceptions not being tendered. Lord Tenterden might have advised, that a bill of exceptions should be tendered, but that does not prove that Lord Tenterden considered, that the verdict was wrong, but that he thought it was better that the case should be decided in another court if the plaintiff was of opinion that the verdict could not be maintained, and that his direction to the jury was erroneous. But, my Lords, this cause afterwards came before the Court of Exchequer—it was there argued before all the Judges, and consequently a decision was given in this case, first by Lord Tenterden, and then by the Court of Exchequer, where all the twelve Judges were 900 assembled. An elaborate opinion was expressed upon the question, and the decision of Lord Tenterden was confirmed without one dissentient voice, it being considered a clear case, respecting which no difference of opinion could exist. The point on which this decision turned referred to the notice of a bill of exchange, and the learned Judges were of opinion that there was no colour for saying that a due notice had been given. Your Lordships now see how utterly false—how entirely fabricated is the assertion in this article, that I advised this proceeding, which I afterwards expressed astonishment should have been adopted. The decision given in this case in the Court of King's Bench was brought before the Judges in the Exchequer Chamber, and till judgment was pronounced by them upon it, there could be no appeal in the House of Lords. Now that judgment was not pronounced till the 7th of May, 1831, seven or eight months after I became a Peer, and took my seat as Chancellor; and, therefore, I could not by any possibility have advised upon the subject of an appeal to "the highest tribunal in the country." In the course of that judgment I observe, that the Court says, "There is a stronger case against the party before us than appeared in Hartley v. Case, which was decided in 1825." Now, my Lords, I argued that very case myself, and therefore, am well acquainted with the points of law to which it referred—so that here is another reason to show that I should not have advised this proceeding, which I have already demonstrated is physically impossible. With regard to the tone of other parts of this article, which I have not thought it necessary to read to your Lordships, I will make some observations. I certainly did dwell on one circumstance when this appeal was before me, and I did so because it appeared to merit reproof. I allude to the manner in which the authorities were cited to bear out the case of one of these parties. The counsel very carefully cited a case which was forty years' old, having been tried by Lord Mansfield, in 1787, but they took not the slightest notice of Hartley v. Case, which was tried so recently as 1825, and which was referred to by the Judges in the Exchequer Chamber. That is not all, my Lords. They cited the high authority of Mr. Justice Bayley On Bills of Exchange, as having laid down the law in their favour; but how did they cite him? Why, they cited from the fourth edition of that learned 901 Judge's work, published in 1822, in which only the old case of Tyndal v. Brown was quoted as applicable to their view of the question. Now, my Lords, I produced to them a fifth edition; but I will first show that that edition might have been known to them. It was published in 1830, and judgment was not given in the Court of Exchequer till 1831. Now, if the fifth edition was published, why should they cite from the fourth? It happens that the fourth edition gives a case in their favour, which is completely overturned by the case of Hartley v. Case, and which is contained in the fifth edition. I produced that case, my Lords, and I did feel called upon, under such circumstances, to make some comments upon the course which had been pursued. I certainly thought, that your Lordships should not have been so treated. When I gave my reasons for affirming the decree, and when I made those comments, I heard nothing from my Lord Chief Justice, I heard nothing from any friendly functionary. I formed my opinion from my own impartial consideration of the case; and when I had delivered it I heard no reflection made which could induce me to recede from it. It was my candid opinion, and I have met with no grounds to induce me to change it. If I could have been suspected of entertaining any feeling, was it not more probable that I should have leaned towards that party whose cause I had advocated, and with whose interests I had partially identified myself? But here the charge is the reverse. I am accused of leaning towards the opposite party. My Lords, I trust that it is needless for me to go further into this subject, and to reply to the gross charges which I have brought under your notice. Forgive me for saying that there will be an end to the judicature of the House of Lords, there will be an end of this Assembly judicating at all, if ever we shall live to see the day—which may God forbid, for there would be an end not only of this House, but an end of the administration of justice in England—when personal feelings, when party prejudices, or factious animosities, shall cross the path shadowless, which ought to be of the pure, undefiled, and bright course which your Lordships' predecessors have always held in the administration of justice. I say, my Lords, that if there should appear, from any sinister motive, any disposition in any quarter to afford these libellers shelter—to give them any encouragement, or to speak for them, we shall then have ap- 902 proached the verge, if not fallen down the precipice, of those dangers which I trust we shall never have cause to fear. I should not have discharged my duty as the humble instrument of the judicial functions vested in your Lordships' hands, if I had allowed this publication to pass by unheeded and unnoticed, after my attention had been called to it. As to the deluded parties who have been made the dupes in this most calumnious attack, I feel pity for them; and as to those who are the prime movers in it, and who have brought about only their own shame and discomfiture, I care nothing for them. This provocation, great as it is, may give me cause for some regret, but I can truly say that I am affected in no other way. His Lordship resumed his seat amidst much cheering, and general cries of "Move, Move!"
§ Earl Grey
rose, and was understood to say, that after the circumstances which had just been stated by the noble and learned Lord—after their Lordships had been made acquainted with the nature of the attack which had been so unjustifiably made upon the public anti private character of that noble and learned Lord, and also upon the privileges of the House, he thought that there could be but one opinion as to the course which ought to be taken, namely, that the publisher of the libel should be called to the Bar of the, House. He had read with indignation the paragraph, which was written in such gross and insolent language, and which accused the noble and learned Lord, who was invested with the highest judicial functions, of having falsified an entry in the Journals of their Lordships, for the alleged purpose of concealing an erroneous judgment. This, it clearly appeared, was totally unfounded in fact, no entry having been made, but that which was usually made. He should, without entering further into the subject, move that the paragraph which had been read to their Lordships was a gross breach of the privileges of the House.
§ Lord Wynford
said, that it was impossible to deny that there had been a gross breach of the privileges of the House, and that the noble and learned Lord could not have done otherwise than have taken the course which he had. The explanation which his noble and learned friend had given of the mode of entering up judgment by their Lordships was quite correct; but at the same time he wished to state, that the form was calculated to deceive many as to its true import.
The Lord Chancellor
said, that he did not wish to interfere one way or the other. Why should he? He was not injured in the least by the publication. He did not care one farthing about it. He had always strongly recommended the House not to get into contests on breaches of privilege, for he had observed that on such occasions both Houses of Parliament generally had the worst of it. He must, however, take the liberty to say, if there ever was a case which ought to be brought forward it was the present. With respect to Lord Tenterden's having entertained any doubt upon the case, this was a great mistake. His Lordship had had no doubt whatever finally. The whole of the Judges had unanimously decided one way. The only operation of a writ of error was the imposition of a great expense on the party bringing the judgment out of Westminster Hall, merely to have the case decided in that House by the very persons who had already decided it elsewhere. A case of pure common law, as to a point of what was or what was not evidence on a bill of exchange, never could be decided by that House against the unanimous opinion of all the Judges. He would leave the case to their Lordships, and if they voted the paragraph a breach of privilege, he might probably interfere upon subsequent proceedings.
§ Earl Grey
said, that he was sure that their Lordships would be of opinion that personal considerations ought not in any manner to influence their judgment on this question, as it was impossible for the House not to vindicate its privileges on such an occasion. He had never been a friend to proceedings against publications, although their Lordships well knew that he had not passed through his political life without experiencing ample provocation. He had not, however, in any one case, ever made a complaint to that House. The breach of privilege now brought forward was capable of no other construction than that it was a most premeditated, malignant attack on the character of an individual, a violation of the privileges of that House; and he was rather surprised that his noble and learned friend should have treated it with so much contempt. The writer of the libel said—"We cannot answer these questions; and we do not advise Lord Brougham to attempt an answer to them. We know, however, quite enough. Lord Brougham has done an act of such wanton oppression, of such cruel injustice, that the Journals of 904 the House of Lords must be garbled for the reversal or the concealment of it!" Here the writer charged Lord Brougham in his judicial capacity as Member of that House, of garbling and mutilating the Journals of the House, either to conceal or misrepresent a judgment he had given. The writer proceeded—"If there is one nobleman in the Upper House solicitous in the very least degree for the dignity of his order, this matter must be noticed without delay." It was impossible for his noble and learned friend not to have noticed this passage, and, it being noticed, it was impossible for the House not to take the course he pointed out to vindicate its privileges. The writer then continued—"If what we tell is true, Lord Brougham is unfit to preside in the Court of Chancery as a Judge, to sit in Parliament as a Peer, to move in society as a gentleman. If what we tell is false,—there never was a greater breach of privilege than that of which we are to-day guilty." Were their Lordships prepared to hear any Member of that House vilified in such a manner upon a charge totally false? If it were false, he contended that never had there been committed a greater breach of privilege, and it appeared to him impossible for the House to refrain from treating it as such. Let the printer be called to the Bar, and if he could urge any thing in palliation or extenuation of what he had done, their Lordships were too just not to be willing to hear his plea, and to allow him the full benefit of what he might be able to urge.
The Marquess of Londonderry
said, that the paragraph was scandalous and base, and if the noble and learned Lord had not taken notice of it, he should have felt it his duty to have brought the subject forward. If the printer should not be able to justify himself entirely, the House ought to adopt severe proceedings.
§ The Duke of Wellington
entirely concurred in the view, that this was a breach of their Lordships privileges. With reference to the mode of recording the judgment, he believed that the question had been put from the Woolsack, that the judgment of the Court below be affirmed. It appeared to him impossible that that House could pass a vote of such a nature, and that there should be no record of that vote. There must have been a record, but the record which had been printed was, that the judgment had been, not passed, but postponed. Any man would be misled by the discrepancy between the record or 905 entry by the clerk and the printed paper, which professed to be a copy of it. He could assure their Lordships that he had himself been entirely misled by the entry on the vote upon this occasion. When he had perused the libel that morning, he had referred to the printed votes, and he had found them different from the record. He thought it but fair and just to state this to their Lordships, leaving it to their Lordships to do with the case what they might think advisable.
The Lord Chancellor
explained, that the entry of the judgment on the record was, in the first instance provisional. In every case where the judgment of the House coincided with that of the tribunal below, until the amount of costs was ascertained, the judgment could not be, even though affirmed, entered as finally passed; and consequently, as in the case which gave rise to the present discussion, the printed vote of their Lordships House stated that the case was postponed for further consideration.
The Earl of Mansfield
thought it was but due to the persons accused of having committed a breach of their Lordships' privileges, to state, that he originally laboured under the same misapprehension respecting the judgment of the House, as the noble Duke who had but just addressed them. He saw in one of the newspapers an account of the speech made by the noble and learned Lord when delivering judgment in the case; and as in that account the noble and learned Lord was made to conclude by moving "that the judgment of the Court below be affirmed with costs," he did not entertain a doubt that such a judgment had been given. His attention, however, was more particularly called to the subject by a friend, who asked him if, such a judgment had been given, and, on referring to the printed minutes of their Lordships' proceedings, somewhat to his surprise he found that no such judgment had been entered, but, on the contrary, that the case had been postponed till a future day. Wishing, then, naturally to ascertain what was the real fact, he availed himself of the earliest opportunity to examine the written minutes, and these certainly he found to be very different from the printed minutes. Whether they ought in terms to correspond with each other he knew not; but in point of fact they did not correspond, and he would shortly state what constituted the difference. In the written minutes above the word "affirmed" 906 were inserted in hand-writing differing from that of the body of the document the words "to be;" but in the printed votes the word "affirmed" was not used at all, the judgment being there stated to be postponed. The meaning of the interlineation in the written minute, he took to be that stated by the noble and learned Lord, but how far the wording of the printed vote was correct he had yet to learn. The statement of the noble and learned Lord respecting the practice of the House, he believed to be perfectly correct. In cases where judgment was given, affirming the judgment of the Court below, with a fixed and determined amount of costs, he would say, for instance, with 100l. costs, the vote of the House would be entered as finally affirmed; but in cases where the judgment of the Court below was affirmed with an amount of costs to be ascertained on a future occasion, the proper entry would be, that the case was postponed until the amount of such costs was ascertained. In the present case, as the judgment was affirmed with amount of costs as yet unascertained, the proper entry would have been "to be postponed until amount of costs ascertained;" instead of which it was stated in the written minutes that the case was "to be affirmed," and in the printed minutes, that it was "postponed sine die." That there was a considerable degree of confusion in the taking down and printing of the minutes was evident, and of course it would be a question with their Lordships how far that confusion ought to go in palliation of the breach of privilege, should they decide upon calling the printer to the Bar. He did not state the circumstance in defence of the person accused of the breach of their Lordship's privileges. In the propriety of calling that person to the Bar to answer for his offence, he entirely concurred; and even though, as was the case on a former occasion, their Lordships might be accused of prejudging the case, by designating it as a breach of privilege before the party was brought to the Bar, he had no objection to assent to the noble Earl's present Motion.
The Lord Chancellor
begged to set the noble Earl right upon the question of privilege. It was absolutely necessary that the article in question should be declared a breach of privilege before any proceedings were taken to bring the printer to the Bar. The printer of the paper, in fact, could not be brought to the Bar unless their Lordships decided that the article in question was a violation of their privileges. He 907 could resist the Order to attend, and no officer would be safe in arresting him, unless he could produce in his justification the Resolution of their Lordships, declaring that a breach of privilege had been committed by the publication of an article in his paper. By that Resolution the case was not at all prejudged; it was only placed in a situation to be considered by the House. His principal object in again obtruding himself upon their Lordships' notice was to say, that with the drawing up of the Minutes of their proceedings he had nothing whatever to do. He never saw the entry made in the Minute-book in the case alluded to until his attention was called to it. Nay, more, in the whole course of his life he never saw a single Minute of any proceedings in that House until that day at five o'clock, when, in consequence of the article in the paper, he referred to the Clerk's-book to see in what terms the Minute in question was entered. There certainly was some confusion in the entries, and his wish was, that that confusion might operate in favour of the accused party. His wish was, that the unfortunate printer might get out of the scrape into which he had been unwillingly brought by others. He bore no ill-will whatever to the poor man who would be obliged to appear at the Bar to answer for what persons beyond the reach of their Lordships' authority had done. He should, indeed, be glad to get at the real authors of the libel, and it was in the hope it might be possible to reach them through the individual who would have to stand at the Bar, that he was disposed not to regret the Motion which had been made by his noble friend. With respect to the insertion of the words "to be" in the written Minute, he could only say, he knew nothing whatever about it. It was stated, and with somewhat of a marked emphasis, by the noble Earl who last spoke, that the insertion was in a hand-writing different from that of the general entry; but he desired distinctly to say, that he had nothing whatever to do with it. It would be easy for their Lordships to examine the Clerks at the Table upon the point, and he was satisfied it would appear, that the inter-lineation was in the hand-writing of one of them. He (the Lord Chancellor) at all events never saw it until that day, and was in nowise responsible for any incorrectness which it might display. With the Clerks of the House, and with them alone, the mistake, if any, rested; and whenever the printer of the paper was brought to the Bar, 908 he would certainly insist upon their being examined, with a view to show that he had never in any way interfered with the entry, and particularly that he had not himself inserted or directed the insertion of the words "to be" as they then stood in the written Minute. This would be but due to himself, and he was sure their Lordships would not refuse such an examination whenever he should request it.
§ Earl Grey
observed, that the manner in which the entry upon the Minutes of the House was made had nothing whatever to do with the question under consideration; it might, perhaps, be a proper subject for future consideraation; but certainly did not properly belong to the matter under discussion. The only question for present consideration was, whether the article alluded to was or was not a breach of the privileges of their Lord-ships' House, and whether the Minute was correctly entered or not made no difference whatever. In his opinion their Lordships could not help acceding to the Resolution he proposed. It was but a necessary foundation for future proceedings, and by adopting it they decided nothing as to the character of the publication in question—nothing as to the guilt of the person whose name appeared to the paper as its printer. By admitting that the article was a breach of privilege they merely took the necessary preliminary stage to ascertain whether it was written with a malicious intent, or whether the writer of it was sincere in the opinions he therein expressed. How far the article was malicious, or how far it was justifiable, would remain for consideration when the printer was at the Bar, and the case would not, he repeated, be in the smallest degree prejudiced by their then deciding, that it constituted a breach of privilege.
The Question, that the article complained of was a breach of privilege, was agreed to.
§ Earl Grey moved, "That Thomas Payne, whose name appeared as printer and publisher of the Morning Post, be ordered to attend at the Bar of the House on Monday next;" but at the suggestion of some noble Lord who stated, that in cases involving a breach of privilege, a day should not be allowed to intervene, the noble Earl altered the time, and Mr. Payne was ordered to attend on the following day (Saturday),