HL Deb 30 June 1834 vol 24 cc946-68
Mr. Bittleston,

the editor of the Morning Post, in obedience to the order of their Lordships, appeared at the Bar; and the Lord Chancellor, having cautioned him that he was not bound to make any answer which might tend to criminate him proceeded to put the following among other questions to him:—

Q. Were you the acting editor of the Morning Post last week—on Thursday and Friday last week, for instance?

A. I was.

Q. In consequence of your situation as the acting editor do you see the matters published in the paper before they are inserted?

A. I do.

Q. Before they are printed?

A. Yes, before they are printed.

Q. Have you the power of inserting, rejecting, and altering articles for publication in that paper?

A. I have.

Q. Do you know the leading articles, those that are in larger characters and wider lines? Did you see those articles?

A. Yes.

Q. Did you read them?

A. I did.

Q. Could you have suppressed or prevented their being printed?

A. I could.

Q. Were those articles inserted by your authority?

A. They were.

Q. Now, have you anything to say respecting the article in the Morning Post of Friday which the House has thought proper to declare a gross breach of the privileges of this House? You are aware of the vote of the House I suppose?

A. I am.

Q. Was that article—and for the third time I caution you that no one can injure you; it will be no contempt in any way if you refuse to answer the question I am about to put—did you write that article, or get it from any other person?

A. I object to answer that question.

Q. Very well. Do I understand you to say—mind I do not blame you—that you decline giving any further information, not only as to who is the author, but as to the hand from which you received it?

A. I respectfully decline giving any further information, excepting that I admit my responsibility for the article.

Q. That is a conclusion in law; but you decline answering the question?

A. I do.

The Lord Chancellor

Before any other Peer puts any question to you, I ask you whether you have any thing to state to the House respecting the article upon which the House has expressed an opinion, with a view to alter that opinion, which you may be able to do, notwithstanding the vote of the House; or if you have anything to offer in extenuation of the offence?

Mr. Bittleston

I thank your Lordship for the permission you have given me to address you in extenuation, but, as in the painful novelty of my present situation, I cannot trust to my own self-possession, I hope I may be indulged in the liberty of referring to written memoranda.

The Lord Chancellor

(concurrently with several Peers)—Certainly. Perhaps it would be more advisable if any other Peer has any question to put that it should be put before the gentleman proceeds with his address.

Earl Grey

I find in the paper the following passage:— 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, all concur in asserting that Lord Brougham moved, "that the judgment be affirmed," and that the judgment was "affirmed accordingly. Now, I wish the witness to be asked if it is meant that the information here alluded to was furnished by certain Peers?

Mr. Bittleston

—I do not understand it so.

The Lord Chancellor

Do you mean that you do not think that is the meaning of the passage?

A. I am sure it is not the meaning of the passage.

Earl Grey

You say, that the meaning is not that it was founded on the information of Peers?

A. I am sure that is not the meaning.

Earl Grey

concurred entirely in the propriety of the practice of cautioning persons under examination that they were not under the necessity of answering any questions tending to criminate themselves. It appeared, however, to him that the person at the Bar could say nothing that could criminate himself more than what he had already stated. He admitted that he was the editor, that he had the general superintendence of the paper, and directed the publication of all the articles that appeared in it; that he had the inspection of all, and approved, rejected, or inserted at pleasure. He had further admitted that he was fully responsible for the publication; and it did not appear to him that the House could desire further information to criminate the individual at the Bar. Under these circumstances he wished to put it to the House whether this individual could claim the benefit of the rule of exemption, upon the ground of not criminating himself, and refuse to answer the question as to whether he received the article, voted by their Lordships a breach of privilege, from any other person, and from whom.

The Lord Chancellor

admitted, that his noble friend had, as he always did, very fairly submitted the question to the consideration of their Lordships. He differed from his noble friend; and it was his duty to give their Lordships his opinion as a lawyer, which he did with all possible deference and humility. If he could see that the answering this question could not tend to criminate or injure the witness, he should say that his protection was at an end, for it was clear he could not refuse to criminate another, although he was himself protected. No person was protected there or in the Courts of Law from disclosing the authorship of others. Although entitled to protection for himself as a witness, no individual was entitled to extend that protection to another. Now, if their Lordships would attend to the tendency of the course of examination proposed by his noble friend, they would see that the witness would be entitled to claim exemption. The witness had avowed his responsibility. Quoad hoc, then, he was answerable and punishable, and no disclosure of any other party's culpability would relieve him, for his hand had given the article to be printed. But there were two things to be determined: first, whether the party at the Bar was guilty or not guilty; and next, what ought to be the amount of punishment. Now the question proposed by his noble friend could not be answered either one way or the other without bringing the witness within the scope of the second head of inquiry, viz., what amount of punishment was to be inflicted upon him? For, suppose he answered the question by stating that he alone was concerned in composing the article in question, suppose he said that he himself wrote it, that would be an answer in aggravation of punishment, for he would avow himself to be the uninstigated author of a deliberate and wilful act in violation of their Lordships privileges. If, on the other hand, he disclosed the names of one or more persons as partners with him, then would his conduct fall within another description of offence. He would then stand at the Bar of their Lordships' House as having confessedly conspired with others to violate their Lordships' privileges, and conspiracy was always an aggravation of every offence. The mildest form of that offence, in the present case, would be that the individual at the Bar had printed what another had written; but even that would be a grave offence. If the witness said, that he had written the article it would be an offence, and punishment must follow; but if he said, that he had partly composed it with another, then he would appear as having embarked in a conspiracy with another wilfully and scandalously to violate their Lordships' privileges. The mode of further examination proposed by his noble friend was not such as ought to receive the sanction of their Lordships. If his noble friend, however, thought fit to ask if A. B. gave the article in question to the witness, that was a different matter, and that question the individual at the Bar could safely answer. But that was not the nature of his noble friend's question.

Earl Grey

was in candour bound to state, that he was not convinced by the argument of his noble friend that the course of examination he had proposed was not such as he might with propriety follow. The person at the Bar having avowed his responsibility for the article which had appeared in the paper of which he was editor, he merely wished to ask him who was the writer of that article, and he could not see, that the question of conspiracy could be brought into the matter at all, in the event of the answer being that he had received it from some other person. He would not, however, persevere in putting a question which his noble and learned friend had stated to be an improper question.

The Lord Chancellor

feared he had been ill understood. There was a difference between the conspiracy of two persons to commit an offence, and the commission of that offence by concert between two or more individuals. If his noble friend asked whether John Nokes gave the particular article complained of, and the answer was in the affirmative, that would not prove a conspiracy. It would be no conspiracy according even to the technical, refined, and subtle definition of conspiracy that one man printed what another wrote. But the case would be very different if two or more persons laid their heads together to compose a calumny to the injury of another.

Earl Grey

observed, that the question he proposed was, whether any other person gave the article in question to the individual at the bar.

The Lord Chancellor

contended, that in whatever way the question could be answered the same result, that of making the situation of the witness worse, must be the consequence.

Mr. Bittleston

addressed their Lordships as follows:—

My Lords—I trust I may be allowed, in the first place, to state to your Lordships, that I have been advised that since I am not entered at the Stamp office as in any way connected with this paper, I might with safety have declined to answer any questions put to me today. But it seems to me, my Lords, that I best show how little I have been influenced by any malignant motive when I come forward to give to your Lordships all the information which I can give, consistently with my duty to my employers—justifying where justification is possible, apologising where apology is manifestly due, and professing my readiness to submit to punishment where no justification can be attempted, and no apology received.

My Lords—I cannot for a moment dispute, that a breach of the privileges of this House has been committed, because I know that any mention of the proceedings of this House in a newspaper is a breach of those privileges. But I trust that the observations which the indulgence of your Lordships allows me to address to you will, in some respects, materially alter your impressions as to the nature and extent of the offence.

My Lords—The paper which your Lordships have pronounced to be a libel, contains two allegations respecting the noble and learned Lord on the Woolsack. The first allegation is, that as a Judge he has reproved and punished parties for following a course which, as counsel, he recommended. The second allegation is, that upon the discovery of this circumstance, an improper interference took place in the entry of the occurrence upon your Lordships' minutes. I beg to remark separately upon these two allegations, because the defence which I shall respectfully offer as to one of them would be wholly inapplicable to the other.

Beginning, therefore, my Lords, with the first allegation, that which imputes to the noble and learned Lord the condemnation of the course he had himself advised, I beg to recall to your recollection the case upon which the allegation is made. The case of Solarte v. Palmer was tried before Lord Tenterden in the year 1828. It was afterwards taken by a Bill of Exceptions into the Exchequer Chamber;—and finally brought by a writ of error before your Lordships.

My Lords—It was always perfectly understood, that when the judgment of the Exchequer Chamber was pronounced upon the Bill of exceptions, the noble and learned Lord occupied the situation which he now occupies; and it never was suspected or insinuated, that the noble and learned Lord on that occasion advised an appeal to your Lordships against that judgment.

But, my Lords, it was asserted, that at the trial in 1828, in which the noble and learned Lord was concerned as Counsel, Lord Tenterden clearly expressed his opinion, that the point raised was so doubtful, and the sum disputed so considerable, that the question ought to be brought before the highest tribunal in the country, by which he can have meant no tribunal but this House. And it was further asserted, that the noble and learned Lord at that time, and on that occasion, testified his perfect acquiescence in the opinion so expressed by Lord Tenterden. The course, my Lords, pursued by the parties was, as I am instructed, the only course by which they could, in compliance with the opinion of the Chief Justice, and the advice of their Counsel, bring the case before this House.

My Lords—The fact that the noble and learned Lord did on that occasion testify his acquiescence in Lord Tenterden's opinion was not first stated in the Morning Post. It was stated in other papers, and by the solicitors for one of the parties in the cause, who vouched, by the addition of their names, for the truth of their assertion. Before the statement was repeated in the Morning Post, every effort was made to test its accuracy. The shorthand writers' notes of the original trial were referred to. The impression on the mind of the eminent counsel who were employed with the noble and learned Lord was ascertained. My Lords, after making every inquiry, there seemed no reason to doubt that the fact was as it was stated to be.

My Lords—I understand that it has been urged in aggravation of the offence, that the truth of this statement was re-asserted after the noble and learned Lord had denied it. In the re-assertion of it, there was not the most remote purpose of imputing a wilful suppression of the truth to the noble and learned Lord; and I very humbly hope, that your Lordships will not find anything in the paragraph referred to, which demonstrates such a purpose. It was imagined from the first, that the noble and learned Lord, when he moved the judgment of your Lordships, did not recollect the opinion he had formerly expressed as counsel in the cause. It appeared, that in moving the judgment of your Lordships, the noble and learned Lord treated the point raised as one of clear and indisputable law, without any allusion to the circumstance that he had formerly concurred with Lord Tenterden in a very different view of it. It appeared also, that the noble and learned Lord assumed the case to be entirely and absolutely governed by the precedent of Hartley v. Case, without any allusion to the circumstance, that Lord Tenterden had suggested the refer- ence of the case to the highest tribunal in the country, expressly that the precedent of Hartley v. Case might be reconsidered by your Lordships. These circumstances, my Lords, induced a belief, that the memory of the noble and learned Lord was inaccurate in this particular. Confidence was placed rather on the notes of the short-hand writer, and in the recollection of other individuals concerned in the cause. My Lords, I most respectfully submit, that a suggestion that a noble and learned Lord does not distinctly remember in 1834, all that happened in one of the many causes which engaged his attention in 1828, even if it can be construed into a breach of privilege, can scarcely be held a very malignant libel; and I am bound to say, however reluctant I may be to incur your Lordships' further displeasure, that I have not yet seen reason to alter the opinion which, upon such testimony as I have described, I could not hesitate to form.

My Lords—I have dwelt thus long upon this allegation, because I should regret much to be supposed to have wantonly aggravated my offence by a repetition of it, after it had attracted your Lordships' notice. I humbly assure your Lordships that, in re-asserting my belief in the statement which had been made in other papers and transferred to the Morning Post, I had no suspicion that I was repeating any part of the offence of which the noble and learned Lord had complained.

My Lords—It had appeared to me that the second allegation in the paper before you—the allegation that the minutes of your Lordships' House had been garbled—was the allegation which had subjected me to the displeasure of your Lordships.

My Lords—I shall say little upon this point, because I am aware that it is impossible to justify what has been done. I had information from an informant on whom I could perfectly rely, that a judgment had been 'affirmed' by your Lordships, and that it was entered as 'postponed sine die.' I confess it did not occur to my mind that any existing usage of this House, could by possibility reconcile the discrepancy between the fact and the record. If such an idea had occurred to me, I should have undoubtedly made further inquiry before I suffered myself to suppose that the minutes of this House had been garbled. But having ascertained the correctness of the facts, I thought the inference drawn followed of necessity from them. My Lords, I understand that the facts are actually true; that the printed minute of your Lordships' vote differs from the written minute; and that neither the printed minute nor the written minute records correctly the vote actually passed. I am informed further, my Lords, that the facts by which I was misled, misled also many of your Lordships; and that the inference which I improperly drew seemed to some of your Lordships the only inference that could be drawn. To the noble and learned Lord I have already tendered the apology, which is the only atonement I can offer him for my attack upon his character; and I desire to express to your Lordships the sincere regret I feel for the violation of your privileges, which that attack involved.

My Lords—I have already trespassed long upon your Lordships' time. But I beg to be permitted to say further, that I have been for many years in various situations connected with this paper, and that during that time I have so conducted myself as to fear no inquiry into the motives by which I have been personally influenced. Since I have had the exclusive responsibility of the Morning Post, that journal has been severe in its strictures upon the public character of public men; but it has never violated, by calumnious scandal, the sanctity of domestic life. It has frequently urged direct accusations against many individuals which might be met and disproved; but it has scrupulously avoided dark innuendo and ambiguous insinuation. In the very example before you, the distinctness with which the facts are stated, and the inferences drawn, is surely a proof that the facts were believed to be true, and the inferences supposed to be correct. And, my Lords, whatever may be the legal interpretation of the offence for which I now await the censure of your Lordships, I trust I may without presumption remark, that it is not possible you can attribute a desire to infringe your privileges to the conductors of a journal in which those privileges have been uniformly supported with humble ability, indeed, but with conscientious zeal."

The Lord Chancellor

wished to say a few words to their Lordships before they proceeded to take any steps with regard to the individual who had just addressed them, who, of course, was supposed to have withdrawn. As few of their Lordships were acquainted with the course of the proceedings in appeals, he was anxious to state that the attorneys in the cause on the losing side, had put into the hands of the individual at the Bar a letter which was calculated most grossly to mislead. He (the Lord Chancellor) could not believe that Lord Tenterden had doubted at all in the matter of "Hartley v. Case." That decision in that case had never been doubted by any Judge, and it was the decision of Lord Tenterden himself. What probability was there then of his having doubted it? He argued it, and Lord Tenterden gave judgment for himself and all his learned brethren. It was not the practice of that noble and learned Lord to call for the re-consideration of a case involving no principle, but merely a question of practice. Supposing, however, that it was true that that noble and learned Lord recommended the reconsideration of the case, that was not after it had been argued in the Exchequer Chamber. If it had come at once to that House upon the recommendation of the noble and learned Lord, should he have visited the party with costs? Certainly not. The reason of his indignation, and which he still felt, was, that a vexatious, unnecessary, and most costly writ of error was brought into that House, after the opinion of the Exchequer Chamber was given. Not satisfied with the opinion of all the Judges who decided the matter in the Exchequer Chamber, and upon the authority of "Hartley v. Case," which was directly in point, the parties insisted upon coming to that House; and for what? For the purpose merely of having the same Judges, who had all unanimously, unhesitatingly, given their opinion in the Exchequer Chamber, step across the Hall, after two years delay and a great expense, to repeat their opinion. And this the gentleman at the Bar, who was evidently a very acute man, with all the attention he had given to the subject, could not see. He could not see that the only result of the proceeding would be, that the learned Judges would step across the Hall to deliver the same opinion in that House that they had delivered elsewhere two years ago. If the object of the appeal had been, to obtain a reversal of any judgment in Chancery it might have been a different thing; but who could not see the absurdity of expecting that the learned Judges would one day entertain one opinion and the next day another, and that upon a matter of every-day common law practice? That part of the matter, therefore, was wide of the question, and had nothing whatever to do with it. He could not help remarking upon one statement which he had heard from Mr. Bittleston with great astonishment. He had told their Lordships that he was misled by the entry upon their minutes; but why suppose that the Speaker of that House had garbled the minutes? That construction surely was an uncharitable one, another being open. But, not content with that false construction, he said that many of their Lordships fell into the same error. He and the Lord Chief Justice had heard Mr. Bittleston so express himself, and he thought he ought to have an opportunity of explaining if there was any ground for doubt on the subject. If he had said so, it was supposing that some of their Lordships were not only uncharitable, but that they were not very wise. He would explain how this was. Mr. Bittleston said that he must have garbled the minutes, and that some of their Lordships were of the same opinion upon the same facts. Now, the same persons, if they saw one of their Lordships with another's hat, would conclude that that noble Lord had been guilty of larceny; but in his case the conclusion was much more illogical, more foul, slanderous, and uncharitable. Mr. Bittleston told them that because the minutes did not appear to him to correspond with the acts done by their Lordships, he was led to imagine that the Lord Chancellor had been guilty of the baseness of garbling the minutes. He wondered it had not struck the author of this composition, that of all the follies man could commit, none could be equal to that imputed to him, for the judgment was delivered not only before several of their Lordships, but in presence of the parties in the cause against whom the decision was, and whom he had severely censured. Most wicked men, he thanked God, were foolish; but here would have been such a mixture of folly, meanness, and wickedness as it would baffle the keenest ingenuity to say which predominated. With these observations he would leave the matter in the hands of their Lordships.

Lord Denman

said, that it was with the greatest reluctance, he rose to address their Lordships; but he was induced to do so because this question was one of very great importance, especially with reference to the administration of justice in that House, and in every court throughout the country. If the offence against their Lordships' privileges—an offence which had been proved—was lightly passed over, there was not a judge in the land who could feel that he had any protection against the foulest and basest calumny which it might please any interested and disappointed party to pour upon him. God knew that all persons in official situations were sufficiently exposed to such malicious attacks! God knew that there was too prevalent a feeling in society, arising from various motives,— from disappointed interest, from defeated speculations— to raise an outcry against those who presided in courts of justice. There was, and it grieved him to state it, a disposition to decry individuals who filled high situations, although the charges advanced against them by disappointed and unprincipled men, rested only on the loosest rumour. This was the course pursued from the abandoned renegade down to the money-making libeller, who sent forth his daily venom against those who ought to be respected and revered. He believed that there was no Judge in or out of that House who wished unnecessarily to call for any summary proceeding. Everything in the nature of a contempt, the Judges had it in their own power to punish. Thus far they could protect themselves. But he hoped that they would always feel that their best security was to be found in the upright character which they maintained, and in the honourable course of conduct which they pursued. In the same manner, if any of their Lordships body were made the subject of even severe observation, he for one would be anxious, if it were possible, to pass it over. He said this, because he felt that there would be no safety for the liberty of the press if a very nice and critical feeling should be exercised with reference to observations on the conduct of public men. This, however, was a most peculiar case; and he begged their Lordships to consider in what situation those individuals who were most liable to attack would be placed, if they permitted the most groundless and the foulest abuse to be poured on them with impunity. In this instance, the charge was one of the foulest which could be imagined, at the same time that the circumstances to which it referred were ludicrously trifling in themselves; but, trifling as they were, they became matters of vast importance when they were made the foundation upon which virulent attacks, levelled at those individuals who acted judicially in their Lordships' House, were founded. He wished, for himself, to know in what situation he should be placed hereafter if his motives were to be impugned, as those of his noble and learned friend had been? He should wish to know in what situation he should stand if, at some future time, some unknown individual should impute falsehood and forgery to him—falsehood and forgery perpetrated in the course of his judicial career? Was such an attack to be suffered to pass by unnoticed? He knew that the power which their Lordships had in their hands was, at the best, an insufficient, an invidious, an unsatisfactory kind of protection; but their Lordships would permit him to say, that it was the only remedy which they possessed. As to the case immediately before them, he was astonished that blind malignity and vile party spirit could have worked any person up to cast forth such an imputation as had been cast on his noble and learned friend. Good God! was there ever such a miserable attack as that which had been thus sent forth against his noble and learned friend? It was stated, that he had given to the Lord Chancellor some hint on the case when it was under consideration. It was asserted that he insinuated certain doubts on the question. When he read the case some time ago, he candidly confessed that he thought there was a room for doubt. With a faded recollection of the case, he came to his learned friend, and he believed he said that the case might have been decided either way. But was the Morning Post present? Was the observation of the Chief Justice of the King's Bench to the Lord Chancellor to be reported by somebody who thought proper to listen? If he were to be thus reported, it ought to have been added, that he had approved of all that had been done, and that his opinion had been completely altered before he left that House. He was now quite certain that this case could not properly have been otherwise decided than it was. Unless he had it under the hand of Lord Tenterden himself, or from some one upon whose authority he could implicitly rely, he would not believe that Lord Tenterden ever entertained any doubt on the subject. That noble and learned Lord had decided another case on exactly the same grounds. The fact was, that no principle was involved in this question: they all knew, that when a Bill was dishonoured, it was necessary to give due notice to the party who was liable; and in this case the whole point at issue, was the construction to be put upon a letter from Solarte to Palmer, the parties in the case. Now, was it because this case was removed from a Court of Law and brought before the twelve Judges in the first instance, that costs were awarded to the amount of 350l.? No such thing. It was because, after the opinion of the Judges had been received in the Exchequer Chamber, the same opinion came from the same parties in that House. There was no point of law in the case; the thing was perfectly clear, and that Lord Tenterden wished it to come before that House he totally disbelieved. What Lord Tenterden stated with respect to going before a superior Court did not alter his opinion on that subject. He knew that it was very common for Judges to say, even when they felt no doubt whatsoever with respect to a case, "If you are dissatisfied with my decision, you may take this case to a higher tribunal, if you please." Lord Tenterden had said this, and the case was taken to the Exchequer Chamber. There Chief Justice Tindal gave the unanimous opinion of all the assembled Judges in favour of the original decision of Lord Tenterden. After three years had elapsed the losing parties came forward and called on the same Judges to revise and alter their solemn decision. Such were the facts. The case stood on its own merits; and he must say that if there ever was a case in which an appellant was called on to pay costs that was unquestionably the case. His noble and learned friend on the Woolsack was right in coming to the decision that he had, and if those who had made the application to that House supposed that his noble and learned friend, because he entertained a particular opinion when he was at the Bar with respect to the case, would, in consequence, favour their application in his judicial capacity, that was a reason that made it more proper and more just that those who entertained such an idea should be visited with costs. With respect to the entry on the journals, it could not be inserted that the case was at an end, and that judgment was finally given, until the amount of costs was ascertained. Some of their Lordships thought it strange that a difference should appear between that which was stated in their minutes and that which they supposed was the fact. That discrepancy was, however, fully accounted for. But he would ask how came it that the Morning Post should be acquainted with the written Minutes of their Lordships' House. That was a matter worthy of their Lordships' attention. But was his noble and learned friend, in consequence of that discrepancy, which had been fully explained, to be dragged beneath the chariot-wheels of this Juggernaut of slander? Were their Lordships to be told, that his noble and learned friend was ready to falsify their Journals, in order to screen himself from censure for a judgment he had given? When the gentleman who had been at the Bar, stated in his address, that it was supposed that some of their Lordships thought, that the statement contained in this paragraph was true, he would say, that it was a libel upon any individual to suppose for a moment that a feeling of that description existed in the mind of any person. It was monstrous to think that the great organ of Justice in that House should be thus attacked, and attacked on grounds that did not even justify suspicion. If suspicion existed, it was only necessary to have called for an explanation, and such an explanation would at once have been given as would have satisfied every reasonable and unbiassed mind. The whole case was now before their Lordships. The individual who had published the libel was also before them, and it was with extreme reluctance that he had troubled their Lordships in addressing them at this length. He deeply, regretted, that the first Motion he made in their Lordships' House should be one of this description. He should take what he believed to be the ordinary course upon such occasions; but God knew, that he acted without the slightest personal feeling towards this man. He also must say, that he proceeded without having had the slightest communication with his noble and learned friend on the subject; but perhaps he might have a feeling of sympathy with reference to what his own case might hereafter be, if Judges were allowed to be libelled with impunity. His Lordship concluded by moving, "That Thomas Bittleston be taken into custody."

Motion agreed to.

The Lord Chancellor

said, that he had listened attentively to the dignified and impressive statement of his noble and learned friend. He agreed with him in the necessity of protecting the Judges of the land, and the judicial functionaries of their Lordships' House, and those on whom the duties connected with those functions devolved. But, although he was duly impressed with these sentiments, and was of opinion, that as against their Lordships a grave, unjustifiable, and unpalliative offence had been committed, he craved their attention to a single observation in his own behalf. He entreated their Lordships, as a favour to himself personally, he being the individual against whom this gross breach of the privileges of the House had been perpetrated—he being the only person individually aggrieved—and if it had been any other Member of the House his mouth would be sealed; but, as he was the only one attacked, he preferred to their Lordships his humble solicitations, that no further punishment might be visited upon the individual in custody. In making this request, he would enter into a solemn engagement, that if they would grant his suit, and allow the individual to be reprimanded and discharged, in no case in which their privileges should be again violated, either in his person or in the person of any one else engaged in the judicial duties of their Lordships' House, would he interfere to beg off the offender. He intreated their Lordships to consider, that it was the request of the party sought to be injured,—he would not say injured,—that justice might be tempered with mercy, and that the offending individual might be discharged after being reprimanded. Was it the pleasure of their Lordships, that Thomas Bittleston should be brought to the Bar, reprimanded, and thereupon discharged?

Earl Grey

was ready to pay every respect to the appeal of his noble and learned friend in mitigation of punishment. It was with great reluctance that he appeared to address their Lordships in aggravation; but considering how grave was the offence, and still more the manner in which it had been attempted to justify it, and agreeing entirely in the character which the Lord Chief Justice had given to the offence, he thought the House ought to consider, setting aside all personal feeling, and desiring only to maintain its character, and, above all, the interests of justice, whether it could possibly allow this case to pass over as proposed by his noble and learned friend? He certainly was not disposed to deal severely with persons in the situation of the individual at the Bar, and he should be ready to bow with deference to their Lordships' opinion; but, referring to former proceedings of a similar nature, he must say, that he looked upon this as the most aggravated case which had ever come under his notice, because it was an invasion of the administration of justice by that House. For these reasons, he did not think it would be right for them to dismiss the person at the Bar upon so slight a visitation of the displeasure of the House. He threw out these observations for the consideration of their Lordships. He doubted the propriety of adopting the course proposed by his noble and learned friend on the Woolsack; but be should be ready to concur in any decision their Lordships might be disposed to come to.

The Duke of Wellington

said, that as he was the person who, upon a former discussion upon this question, had given his opinion respecting the manner in which the Records of that House were kept, and particularly upon this subject, and as this point had been adverted to by the gentleman at the Bar, who had been misunderstood, he thought, in that part of his address—he would venture to offer a few observations to their Lordships. It would be recollected, that the appeal out of which this question arose was one which attracted particularly the attention of their Lordships. The Report of the Judges, as their Lordships would recollect, had been received by a noble Lord who did not belong to the legal profession, and that circumstance had been adverted to by a noble and learned friend of his in that House. The subject, therefore, had attracted the public attention. When he first saw the paragraph in question, he confessed he was much surprised, and he was induced to make inquiries. The result of those inquiries was, that, although he found the Lord Chancellor had moved the House to confirm the judgment referred to, and although particular proceedings were had upon that occasion, yet not only was there no written record of those proceedings giving an accurate account of them for the information of the House or the public, but there was a printed record which did not give an accurate account. Both these records, the written and the printed, differed from each other, and both differed from the fact. He did not mean to blame the noble and learned Lord on the Woolsack in this transaction, neither did he blame the gentlemen at the Table of the House; but he could not help observing, that such a state of things was productive of great inconvenience. He meant by what he formerly said, to observe, that this state of things might have misled the gentleman at the Bar. He understood that gentleman to have referred in his address to what fell from him on a former evening. He could only say, that if he had been instrumental in misleading that gentleman to form an erroneous judgment he regretted it. Nothing was further from his intention than to cast any reflection on the noble and learned Lord. If he had entertained any opinion of that kind he should have said so without any hesitation; but he fully acquitted the noble and learned Lord upon that subject. He must say, however, that the mode of keeping the records of that House, both written and printed, was anything but satisfactory.

The Lord Chancellor

wished to explain on behalf of the clerks of the Table. He need not remind their Lordships, that whatever had been done in this case as to the minutes, had not been done by him. The mode might be right, or it might be wrong; but he was not the author of the practice. Upon this occasion, as upon all others, he gave no direction either to write or to leave out anything. But the mode complained of was not peculiar to that House. The same practice was followed in every Court in Westminster Hall. They must, therefore, take a little time to reflect before they altered it. The judgment was never regularly entered up on the postea until the costs were taxed. The case might be decided and reported in Barnewall and Alderson, or any other reports, and yet the postea not finally entered until the costs were precisely ascertained. The entry alluded to was a mere private memorandum of the clerk of the House, and formed no part whatever of the Minutes of their Lordships' House. It was only meant as a security, that the regular entry should afterwards be made upon the Journals.

The Earl of Limerick

said, that in justice to the noble and learned Lord on the Woolsack, he must say, that the noble and learned Lord treated with great moderation the groundless attack that had been made upon him. It did not seem that the noble and learned Lord had done anything wrong in the performance of his judicial functions. It was the duty of the noble and learned Lord to give his opinion on the case that had come before him for judgment. He was a great friend to the safe and proper administration of justice, and he should therefore be always ready to protect the judicial authorities of the country in the discharge of their duties. He recollected a former occasion, when a person brought to the Bar under similar circumstances to the present, for a breach of privilege, declined to give any explanation or information whatever to their Lordships, or to make any apology, and that person had the advantage of receiving a very lenient judgment, as well as having had the advocacy of the noble and learned Lord. He thought that the individual who had that day been called to the Bar had a better claim to the lenient consideration of their Lordships than the person to whom he had alluded. He trusted, therefore, that the Motion of the noble and learned Lord for calling him again to the Bar, and ordering his discharge after a reprimand, would be acceded to by the House. He should be one of the last men living to sanction the publication of any matter that might be hurtful to the feelings of another; and in supporting the Motion of the noble and learned Lord, his only object was, to have justice administered in mercy.

The Marquess of Londonderry

could not see why the noble Earl opposite (Earl Grey) should wish to visit with a different and more severe degree of punishment a person who might offend against the Ministerial party in the House, than one who might, in like manner unjustly assail an individual attached to the Opposition side. He trusted the noble Earl would not press his interference between the generosity of the noble and learned Lord on the Woolsack and the individual at the Bar. He should be sorry to see any difference made between the cases of two persons who had offended alike because their offence applied to different parties in that House.

Earl Grey

was sure their Lordships would acquit him of entertaining any other feeling upon this occasion than a desire to uphold the character, the dignity, and the privileges of that House. He could have no personal feeling whatever on the matter. He confessed that he was surprised, often as he had been subjected to the attacks of the noble Marquess who spoke last, that that noble Marquess should attribute to him the disposition to visit with different degrees of punishment any persons who might offend against their Lordships' privileges because they were the advocates of different opinions. He did not, he confessed, expect this imputation from the noble Marquess, much as he was opposed to him. This was a difference to which he never for a moment gave the slightest consideration. In the case that had been alluded to by the noble Earl (the Earl of Limerick), as well as in the present case, a breach of the privileges of their Lordships' House had been committed, and in coming to a judgment upon either, he hoped he should not be suspected of being influenced by any other feeling than purely a sense of justice and duty, and that no private consideration could enter into his mind in giving his opinion. He had but one object, namely, to maintain the character of that House and the proper administration of justice. Nothing could be more necessary to the due administration of justice than to protect the judicial authorities against such attacks as had been levelled at his noble and learned friend. On this ground chiefly it was, that he was not disposed to pass over the present case in the lenient manner which had been suggested by the generosity of his noble and learned friend. As to the entry which had been made in the Journals of the House, to which so much allusion had been made, he looked upon it as a question not at all connected in the present case. With respect to the other case, that had been quoted, he begged leave to say, that he was not one of those who on any occasion of this nature recommended a severe measure of punishment. But let the House see what was the course pursued in that case. A very atrocious libel had been published on the noble Earl opposite (the Earl of Limerick) and it was quite impossible that the offending party could be suffered to escape; and the course then taken was precisely what he recommended now, namely, that the offending party was committed to the custody of the Usher of the Black Rod, and was not discharged until after he had presented a petition to their Lordships, and had been reprimanded at their Bar. God knew he entertained no other feeling or desire as regarded the individual at the Bar than to see, that the character and privileges of their Lordships were maintained, although he certainly looked upon the present case to be by far the most aggravated that had been brought under the notice of their Lordships; and he did not think, that it would stand well upon their Lordships' Journals, if such a case, after having been noticed, were passed over without the visitation of severe punishment. Having said thus much, he was quite willing to acquiesce in the suggestion of his noble and learned friend on the Woolsack; but he could assure the House, that he was not biassed in any opinion he had given by a wish to deal out one measure of justice to the advocates of one side of the House, and another to those of the opposite side.

The Marquess Camden

looked upon this libel as a most atrocious one, and which many would imagine could not have been made unless there had been some foundation. It had, however, no foundation whatever. It was proved to be as false as it was virulent, and he thought it should not be suffered to escape without some marked expression of their Lordships' censure. Their Lordships were bound to protect those who were engaged in the administration of justice. He was not disposed to visit this case with any unusual severity; but he could not prevail upon himself to let the party at the Bar escape altogether. He would, therefore, move that he be taken into the custody of the Black Rod."

The Lord Chancellor

He is already in custody.

The Duke of Hamilton

was anxious that some conciliatory course should be adopted. He admired the moderation of the noble and learned Lord in the course which he had suggested. That noble and learned Lord had come forward to request their Lordships to treat the person at the Bar with lenity; and he (the noble Duke) hoped that that suggestion would be adopted, and that their Lordships would be lenient towards the person at the Bar. From what appeared to be the general feeling of their Lordships, he trusted they would pass the matter over leniently. He would not apologize for the gross libels which appeared in every public paper every day in the week—that he would admit was no defence for this, but it might be looked upon as a sort of palliation, that he followed a too general custom.

The Earl of Harrowby

said, he was not disposed to visit this libel with all the severity it deserved, but still he thought it was one which ought not to be allowed to escape with impunity. He should like to follow the precedent established in the case of the publisher of another paper who had been brought before their Lordships. That individual had been ordered into the custody of the Black Rod, and was discharged only on his petition. There was, however, a difference between the two cases. The former, though an atrocious libel, was only an attack on an individual Peer, and valuable as must be the character of every Member of that House, an attack upon any individual Member must fall short of a gross charge upon the noble and learned Lord who represented the House in its judicial functions. They had visited an attack upon the character of a noble Lord by ordering the publisher of the paper in which the attack was made into custody, and he did not think, that an attack on the noble and learned Lord who represented that House in its judicial character should be visited more lightly than one on any other individual Member. Instead, therefore, of reprimanding the person at the Bar, and ordering his discharge, he thought, that their Lordships ought to mark the sense of the libel by extending the punishment.

The Earl of Radnor

could well see why his noble and learned friend should not wish to press the case against the person at the Bar; but, with every respect for the feelings of his noble and learned friend on this occasion, he did not think that they ought to weigh with the House. The attack made was not only a gross charge on an individual member, but it was an attack on the House itself in its judicial character. It was a charge that its records had been garbled and falsified. It was, therefore, the affair of the House itself and not of any individual Peer. Under these circumstances, he concurred with the noble Earl (Harrowby) and the noble Marquess (Camden), that something further ought to be done than merely reprimanding the person at the Bar. Indeed, there was no precedent, after a vote declaring that a gross breach of the privileges of that House had been committed, for discharging the person at the Bar without sending him to Newgate, or ordering him into custody; and then the practice was, not to discharge the party except on his petition, acknowledging his offence, and expressing his regret for it. If, therefore, their Lordships had a due regard for their privileges, they would not suffer such an attack on them to pass with impunity, and an attack made on the most futile grounds; for if the party who wrote that article had sought for an explanation from the clerks at the Table, he could easily have ascertained the fact, and then he might have avoided the gross charge he had made.

The Earl of Harrowby moved, that the House pass to the Order of the Day.

The Motion agreed to, and Mr. Bittleston was removed in custody.

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