Lords Sitting of 28 June 1834

BREACH OF PRIVILEGE—MORNING POST.
The Order of the Day was read, on the Motion of Earl Grey, and Thomas Payne, the printer of the Morning Post, was called to the Bar. Mr. Payne was questioned at some length; but as he stated, that he was only the publisher, and neither the printer nor the editor of the paper, and that Mr. Bittleston was the editor; he was ordered to withdraw.
The Lord Chancellorfelt sorry to detain their Lordships by stating what was quite clear and evident. After what he had heard from the person at the Bar it seemed impossible to press the Order of the House against him. The rules of their Lordships' House on such occasions showed, that they had a right, strictly speaking (on the admission of the party that he was registered publisher at the Stamp-office), to visit upon him the consequences of the offence. Upon that admission he was responsible by the law of Parliament and by the law of the land. He would be responsible in an action at law, responsible upon a criminal information, and responsible upon an indictment; and he was responsible to that House for a breach of its privileges by the laws of Parliament, which were in fact a part of the law of the land, as far at least as they were recognized by the laws of the land. The offence was cognizable by the House whose privileges had been violated; but it was a matter of discretion whether their Lordships should think it just or advisable to visit on this individual the punishment due to the offence that had been committed. It clearly appeared, that technically speaking, this was the guilty person, whilst morally speaking, he was not guilty. He did not interfere in any manner or way
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whatever with the articles that were published in the paper. He neither could put an article in or keep it out. He could not alter or modify it; and it appeared by his own statement, that he did not always even read the paper after it was published, so that he was in point of fact probably more ignorant of its contents than the general body of its subscribers or purchasers. It was evident that he possessed no power of control, no privilege of advice, no privilege of Counsel, no discretion, no permission of giving an opinion, no means of information; in fact, that in no one way whatever did he interfere; and therefore he would at once submit to the House, that Mr. Payne be discharged from custody. He had not wished to urge anything further on the attention of their Lordships, but he was bound to mention what he could not but consider a very extraordinary course that had been pursued by the journal in question. After a breach of privilege of that House of so gross and flagrant a nature, it could not but be deemed a very gross thing for the paper to aggravate its offence in the way it had done, by repeating its conduct even whilst its responsible agent was under the summons of the House. He had stated only yesterday, in the most distinct, unequivocal, and positive manner, that as Counsel in the case of Solarte v. Palmer, he had never advised that any appeal should be made to their Lordships' House. He had clearly shown, that it was an absolute impossibility that he could have given any such advice, for the cause had been decided six or seven months after he had left the Bar, and become the chief functionary to whom the appeal was to be made. Notwithstanding this clear and positive denial, the same party had repeated the charge that he had advised such a course as Counsel, and that he had afterwards reprobated it as a Judge. He had never blamed the appeal to the Judges in the Exchequer Chamber. He had never said one single word, or given by any means one single intimation, that could be construed into a disapproval of that course. All that he had blamed was the appeal to their Lordships' House after the decision in the Exchequer, which was, in point of fact, nothing more than to bring the Judges from one side of Westminster Hall to the other to go over the same case, at a very great expense to the parties concerned. Probably an ignorance of the law, conjoined to an ignorance of the truth, might have caused that misconception which had

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been the grounds of such an unjustifiable attack on him. He did not wish to say one word, except what he deemed necessary to his defence, and he had now only to move their Lordships, if his noble friend (Earl Grey) did not object, that the individual be discharged from custody.
Earl Greyhad no objection whatever to the individual being discharged, inasmuch as it appeared, that he was only a man of straw, who, as his noble and learned friend said, was legally subject to the consequences of the offence, but not morally responsible, and, considering the whole case, he imagined that their Lordships would not think him a fit person to be visited with punishment by that House. But there was another point which demanded the serious attention of their Lordships. Whilst he had no objection to adopt the recommendation of his noble and learned friend, he could not but feel that their Lordships would not be discharging their duty if such a breach of the privileges of that House was to be permitted to pass off with impunity. The person who attacked the official and personal character of the noble and learned Lord on the Woolsack, and outraged the dignity of the House, openly stated his consciousness that he was committing a breach of its privileges, and he challenged the House to assert its dignity. He acknowledged that he was fully aware, that he was committing a breach of privilege, and he had repeated the charges without taking one single step to ascertain whether there was any foundation whatever for them. This was an offence in every respect of the most aggravated nature, and it was impossible, that their Lordships could pass it over. On his own part he felt it impossible to allow such conduct to be repeated with impunity, unless by sacrificing the dignity of the House and the character of its Members, As the person at the bar had given to the House the name of the real editor of the Paper, who had precognition of the articles that appeared in the publication, and who possessed a discretion as to their insertion or rejection, he maintained, that the House would not be doing its duty, unless it called for the attendance of that person at the bar. In the first place, he would assent to the motion of his noble and learned friend; but, that motion being disposed of, he should move "that Thomas Bittleston be ordered to attend at their Lordships' Bar on Monday next, to answer for his offence."
Lord Wharncliffecould have no objection to this proceeding; but could not refrain from drawing the attention of their Lordships to the conduct of other parties concerned in misrepresenting the noble and learned Lord. He alluded to the assertion, that the noble and learned Lord at one time advised that an appeal should be made to the House. The solicitors in the case, in a letter which they published in one of the newspapers, contrived to mislead the public. He could not acquit the solicitors of improper conduct when he read the letter that was recently published in the Papers. On referring to that letter this morning, he found that it stated, that the noble and learned Lord did, in point of fact, advise an appeal to this House. Now, that statement had been clearly proved to be contrary to fact, and he therefore thought that it was impossible for the House to be satisfied by merely bringing the editor of this Paper before the House. Their Lordships must mark their displeasure upon other parties.
The Lord Chancellorhad the greatest possible respect for the noble Lord, but really could not agree in the propriety of the course which he had recommended. He thought it his duty to make some remarks upon the conduct of those professional men (and it was always with pain that he did so), and they were naturally much hurt at those animadversions. This might form their excuse. He therefore begged, as a personal favour to himself, that this part of the case might not be pressed. He threw himself upon the House.
Lord Wharncliffe: Gross as the libel is, directed as it is against the highest judicial functionary in the country (and therefore the more dangerous), yet I should be sorry if the editor were the only party who was brought to account. I have already stated my reasons.
The Earl of Radnor: My Lords, I feel it my duty to state,—and I do so on very good grounds,—that the fault referred to does not rest with the solicitors. I was present when the appeal was before the House, and I heard one of the learned Counsel at the Bar state that very circumstance which has been held up as a libel against the noble and learned Lord. The learned Counsel most distinctly stated, that the noble Lord recommended at one time, that an appeal should be made to the House of Lords. The misrepresentation, therefore, does not rest either with the so-

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licitors or with the editor of this Paper. The learned Counsel went out of the way to make that statement. The printed paper put on the Table of the House gave an unfair representation of its decision. This is a thing of which I maintain the House has the greatest reason to complain. Lay Lords are liable to be deceived by it. The noble and learned Lord on the Woolsack, the noble and learned Lord who has presided over the Court of Common Pleas, the noble and learned Lord who now presides as Chief Baron of the Exchequer, and other learned Lords, may have an opportunity of sifting such causes, and understanding what is their real nature; but, by the theory of the Constitution, the lay Lords of this House are as much Judges in these cases as any learned Lords whatever, and yet they are liable to be misled by the printed papers giving an unfair representation of decisions. Although every lay Lord will pay all deference and respect to learned Lords in proceedings on such cases, yet, in some degree, every lay Lord must act upon his own opinion, and how can he do this when a Counsel at the Bar gives an unfair opinion, and when the papers on the Table of that House give unfair, yes, unfair, representations of decisions?
Lord Lyndhurst: I think, hat the noble Lord has totally misapprehended what fell from the learned Counsel referred to, and who is also a Member of the other House of Parliament. I believe, that learned and eminent Counsel did not state that the appeal had been recommended by the Lord Chancellor. I believe that he stated, that the Bill of Exceptions had been recommended by himself, Sir James Scarlett, and the noble Lord on the Woolsack. It was to that proceeding that the learned counsel referred. I think, that before the noble Lord made a charge of such a nature against the learned Counsel, a charge founded on his own individual opinion, he should have taken some steps to ascertain the fact with accuracy. I am sure the learned Counsel never expressed himself in the way which he is said to have done. I do not think, that the noble Lord intentionally misrepresented what fell from that learned Counsel; yet as a lay Lord, and likely to fall into error respecting what a barrister said, I do think that he should have taken care to ascertain the accuracy of the statement before he made such a charge.
The Earl of Radnor: My Lords, I am
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perfectly convinced that I labour under no misapprehension whatever. I had never heard of the case before. I had no knowledge of its existence, and I could have no feelings, nothing in my mind, to lead me into error or misconstruction. The learned gentleman who said this to me, said it most clearly to my understanding, and with reference to the costs of the proceedings having gone by compromise. He had added, that no barrister ought to recommend an appeal to this House, and act as the Lord who was to give the judgment on the reference. This, my Lords, was my clear and distinct understanding at the time. I went away with this impression, and nothing that I have heard since is of a nature to alter it.
The Duke of Wellington: I apprehend, my Lords, that the question before the House is, whether a certain person shall be ordered to attend at the bar of the House to answer for a breach of privilege which he has committed. The observations made by the learned Counsel respecting the conduct of the noble and learned Lord have nothing at all to do with the case. Supposing it was true, that the noble and learned Lord had advised that an appeal should be made, whether it be true or not, still I do not see what we have to do with it. It is no libel on the learned Lord to say, that at the bar he advised an appeal of which, when he had formed a more mature judgment, he could not approve. He might have thought proper to animadvert upon the appeal, and to affirm it with costs, although he had when a barrister, and in a situation so essentially different, advised that very appeal. That can be no excuse for libelling the noble and learned Lord, and interfering with the privileges of this House.
It was ordered, that Mr. Payne be discharged, and that Thomas Bittleston attend here on Monday next.