HL Deb 11 March 1839 vol 46 cc208-28

The order of the day for taking into consideration the report from the Select Committee on the Petition of John Joseph Lawson, for the production, on a trial for libel, of certain evidence taken before a Select Committee of this House, having been read,

Lord Lyndhurst

said, he felt it to be his duty to call their Lordships' attention to this Report, as he had the misfortune to differ in opinion from the majority of the Members of the Committee from which it had proceeded. He did so with the greatest respect and deference for the judgment of those noble Lords, for it was possible, he would say it was probable, that he might entertain an erroneous opinion on the subject. But as it was a question connected with the administration of justice, he had, after considering all the arguments advanced in favour of that Report, and not being able, in consequence to alter his opinion, thought it to be his duty to bring the matter before their Lordships; and more particularly, as, if their Lordships agreed with the Report, it would lead to the commission of a very great act of injustice. For the purpose of introducing the question, and enabling their Lordships to understand the subject, he would very shortly state the facts of this case. It appeared that in the last Session of Parliament a Committee of their Lordships was appointed to inquire into the state of New Zealand. Witnesses were called and evidence was given, and on that evidence a report was made to their Lordships. On application being made for that purpose, that report was communicated to the House of Commons. It was ordered to be printed, and, under the authority of the House of Commons, that Report was printed, and circulated, and sold throughout the whole country, by Mr. Hansard, the printer to the House of Commons; and, in consequence of the nature of the subject, it had a most extensive circulation. Now, persons who conceived their interests to be deeply affected by that Report, who felt that that Report reflected on their character, had done that which they conceived they had a right to do; they made certain observations on that Report—a Report so printed, so distributed through the country, and so extensively sold. To make those observations intelligible they did what any one would have done under similar circumstances—they cited a small portion of the evidence; and in consequence of that an action was brought against the printer who printed those observations. That printer, in consequence, justified, according to the legal phrase. That was, he undertook to prove the truth of everything which he had printed. On that plea of justification issue was joined. The Attorney-General was counsel for the defendant (the petitioner at their Lordships' bar). That learned Gentleman said—"It is true this Report was printed and circulated throughout the country—it is true that it is a matter of perfect notoriety—it is a matter which no man disputes; but it is necessary, according to the strict rules of evidence, that the original evidence given by the witness should be produced and proved by an officer of the House of Lords." Accordingly, application was made to the Chief Justice of the Court of Queen's Bench for time to allow an opportunity for making an application to their Lordships' House, to permit the appearance and examination of their officer. The application was acceded to, and the trial was postponed. The Attorney-General said then, and he repeated now, that unless this evidence were allowed, that if their Lordships refused to admit this evidence to be given, there was no defence to the action, although the existence of the evidence was notorious and indisputable. This evidence was clearly necessary to enable the petitioner to substantiate his defence; and application was humbly made to their Lordships to let their officer attend at the trial. The petition was referred to a Committee of their Lordships, and their opinion was, that the prayer of the petition should not be granted. What would be the consequence of that refusal if it were persisted in? Why, it would be this, that the trial would come on, a verdict would be obtained, and judgment would be pronounced, on a partial view of the case—their Lordships not allowing that evidence to be adduced which was necessary to the substantial justice of the case. Now, when he stated this, he must say he could not see any possible ground of justification for this refusal. After considering all the objections against the production of this evidence—after all he had heard on the subject, he was still of opinion, that there was no validity in such objections; that there was no just reason for coming to such a conclusion. He spoke, however, with the utmost deference and respect to the opinion of those noble Lords who entertained a different view of the subject. Something had been said about their Lordships' privileges. But how could this application affect their privileges? Their Lordships were asked, as a matter of indulgence, and in order that justice should not be thwarted and perverted, to allow one of their officers to be examined. How could a compliance with that request be a breach of their Lordships' privileges? What was the object of their Lordships' privileges? Was it not that justice might be effectually done, and not thwarted and defeated? But, then, another objection was raised, which was founded on the question of privileges. He did not expect, that objection from the quarter whence it had come, for it manifested a great deal of acuteness of mind arrayed against the substantial justice of the case. The judges, in general, opposed themselves to anything that seemed likely to retard and delay justice, and he only asked of their Lordships now merely to forward the justice of the case, and not to assist the defendant unfairly or improperly. While he made these observations he did so with the utmost respect for the noble individual to whom he was about to allude. What, then, was the noble Lord's objection? He said, "The petitioner has violated your Lordships' privileges, and, having done so, he has no right to come here (not for indulgence, he would say, but) for justice." What privilege of their Lordships was violated? One of their standing orders set forth, "That no person shall print, or publish in print, any proceedings of their Lordships' House, or anything relating to such proceedings, without the leave of the House." It was said, that the petitioner had violated their privileges by infringing that order. That was the foundation of the noble Lord's objection, and on that the report of the Committee was founded. Did the petitioner then violate the privileges of the House by copying at large this evidence, which had been sold and circulated notoriously through the country? No, cer- tainly not; because, as he had previously stated, the petitioner had only selected certain passages, in order to make his observations intelligible. This was the whole extent of the violation of the privileges of the House on which the noble Lord's objection rested. If their Lordships did not grant the prayer of the petitition, what would be the consequence? Why, the petitioner would be punished by having a verdict against him; because in his own defence, and to make his observations intelligible, he had violated the letter, not the spirit, of the standing order, by printing a few sentences of the evidence. If he bad violated their Lordships' privileges, let him be dealt with in the regular way. Let him be called to their Lordships' bar, let him be censured; let him be imprisoned, but for God's sake let them not refuse him justice. How could their Lordships say what amount of punishment an adverse verdict might inflict on the petitioner? How could they tell in what way such a verdict might operate? The true spirit of justice would be, if the petitioner had violated their privileges, which he contended the petitioner had not—he was the assailed, not the assailing party—was to call him to the Bar, and to award him such punishment as appeared to be commensurate with the offence. But let them not interpose to prevent him from obtaining that evidence which was necessary for his just defence. Again, it was said by noble Lords, that it was necessary to protect persons examined before select committees. But had the witness claimed protection? Was there any petition from the witness? No; but this witness was the plaintiff in the action. And for what did the petitioner ask? Why, merely for justice, as between him and that individual. Let then the cause be heard; let the evidence called for be produced; let the jury decide; and let a verdict be given according to that evidence. Was it possible, under all the circumstances, that they could deny the prayer of this petition? Another strange objection was made (which, however, he wished to speak of with respect), the force of which he did not understand then, nor did he understand now; but, as it might operate on the minds of some noble Lords, it was necessary for him to advert to the subject. The Chief Justice, it was said, had decided that an action would lie for printing a petition, or any other document, containing libellous matter on any individual by order of the House of Commons. Then it was argued, that such a case might come home to their Lordships' House. Be it so. But how did that apply to the refusal of the prayer of this petitioner? He stated the argument as he understood it, but he really could not see the force of it, or its application to this case. What did the petitioner ask? He requested their Lordships to allow their officer to appear in court. To do what? To speak to a question of fact. Suppose the question came before their Lordships by a writ of error. They would then have nothing to do with the facts. They could not act on them, they could not consider them, they must decide on the record—on a mere question of law. How, then, could the objection he alluded to have any bearing on the question? The same noble individual, for whose acuteness and ability he entertained the greatest respect, made another objection. "Why," demanded the noble Lord, "are we to evade our privileges? Why should not the judges of the Court of Queen's Bench alter their technical rules of evidence?" Now, if there were anything less technical than another, it was the rules of evidence in our courts of justice. They were founded on long experience, and a philosophical view of the subject, for the purpose of securing the best mode of arriving at the truth. There was nothing whatever technical in those rules. Technical rules of evidence, indeed! The Chief Justice of the Court of Queen's Bench had no power to alter those rules. If he received evidence that ought not to be received, or rejected evidence that ought to be received, a bill of exceptions would be tendered, and the matter would be set right. It was for the Legislature, and not for the Judge, to alter the law of evidence; and if a case came before their Lordships by writ of error, they must decide it according to the law of the land. He knew of no other arguments or objections that were used to induce the Committee to agree to this report, and to come to the conclusion that the prayer of the petition should not be granted. It would be now proper to inquire what were the privileges of the House of Commons, and by what rules they were guided and directed. Their rules were the same as their Lordships. They considered their privileges to be as important as their Lordships considered theirs, and they guarded them as strictly as their Lordships guarded their privileges. Yet he found that a case occurred in 1820 of a description precisely the same as the present. He found this entry on the Journals—"House of Commons, 12th of July, 1820. Ordered, that the shorthand writer who attended the Police Committee in 1817 have leave to attend at the trial of Lee v. certain magistrates of the county of Middlesex, with the minutes of evidence given before the said Committee in 1817." So that the House of Commons readily granted an application of this nature. The House of Commons did not consent to the prayer of all such petitions; they also maintained their privileges; but in the case to which he had alluded, the other House of Parliament, feeling it necessary for the ends of justice, allowed the petition of the applicant. It had, however, been said that the present case was different from that which had come before the House of Commons; but in what did that difference consist? It had been said, that the applicant to the House of Commons had not violated the privileges of that House, and that the present applicant had by printing a portion of evidence taken before a Committee of their Lord ships' House, been guilty of a breach of privilege. Was that consistent? Was it in accordance with justice or with common sense? The application made to their Lordships was this,—their Lordships were themselves a court; they were judges of the highest court of judicature in the nation; and here was a cause dependent in the court below, and which could not be fairly decided if their Lordships refused the prayer of the petition. Would their Lordships, therefore, sanction an unjust decision? Would they resolve that the sentence of the court below should be given on imperfect evidence? Would they consent to an act of great injustice by withholding their consent to the prayer of the petitioner? He could not believe that their Lordships would be induced to sanction injustice, and therefore, but with all deference, he submitted that the prayer of the petitioner ought to be granted. The noble and learned Lord concluded by making a motion to that effect.

The Lord Chancellor

said, that having had the honour of being chairman of the committee to which the noble and learned Lord had alluded, he felt himself called upon to address few observations to their Lordships; and he thought that their Lordships, upon consideration, would be of opinion, that the committee had no option as to their decision on the case before the House. The noble and learned Lord had said, that his was a case of great hardship to the individual applicant; but, although he was most unwilling that any person should suffer hardship, yet in questions of privilege it was not an individual which their Lordships had to consider, for what they had to consider was, whether it was for the interests of the country, and whether it would tend to promote the business of the House, to prevent the publication of any portion of their proceedings. As far as the individual was concerned, he would have been glad to give him every possible facility of proving his case, but the applicant had not set forth the necessity for granting the prayer of his petition, and whether it was necessary that the evidence prayed for should be put upon the record their Lordships had no knowledge. The petitioner stated the facts regarding the report made by the Committee. He said,— That in the last Session of Parliament your Lordships appointed a select committee to inquire into the state of the islands of New Zealand. That the evidence taken before the said committee was, pursuant to your Lordships order, printed, and was communicated to the House of Commons, was by that hon. House again printed, and had been, and still is, sold at various places in London. That an article was printed and published by your petitioner in "The Times" newspaper on the 6th day of November, 1838, on the subject of a company called the New Zealand Associationists, in which the evidence of Joel Samuel Polack and John Downing Tawell, two witnesses who were examined before the said committee, was quoted, and certain comments made thereon. The petitioner then stated, that an action had been brought against him on account of the publication of a portion of the evidence taken before the New Zealand committee, and that to that action he had pleaded a justification, and that Polack and Tawell did actually give before the committee the evidence on which the action was founded. He said further, that in commenting on the case, the evidence of those two persons was quoted, and he then stated, that he was advised that it was indispensably necessary for the ends of justice that the original examination should be given in, and that it should be produced at the trial. Now, it was said, that the evidence had been taken before a Committee of that House; that it had been communicated to the House of Commons; and that it was then printed and sold at various places. But, it was not stated, that it was sold by the direction of the House of Commons, and that fact ought certainly to have been set forth. The only ground on which the petitioner came forward was, that he had printed evidence taken before a Committee, and having done so, and an action having been brought against him in consequence, and having pleaded a justification, he prayed their Lordships to enable him to prove the evidence taken before the Committee. Now, by one of their Lordships' standing orders, it was declared a breach of privilege to print or publish any portion of the proceedings of the House without leave. But here the party who came for protection had, without leave, printed and published part of their Lordships' proceedings, and he then came before the House, by petition, praying their Lordships to sanction the breach of privilege of which he had been guilty. There might be a question, whether it were proper or not to maintain the standing order to which he had alluded; but if it was no longer to be maintained, then it ought to be repealed upon general grounds, and not on a particular case like the present. That, however, formed no part of the present question, and what their Lordships had to consider, was, whether a person who stated that he had been guilty of a breach of privilege, ought or ought not to have the protection he prayed for granted. If the application were to be granted, and the prayer of the petition conceded, then their Lordships would have to take into consideration how far concession was to go. Where were they to stop? Such, he believed, was the view of the question taken by the Committee, and it was because they could see no termination to such applications, if the prayer of such a petition were once granted, that they had come to the determination to advise their Lordships not to concede the prayer of the present applicant. The petitioner stated, that the report of the Committee on New Zealand had been communicated to the House of Commons, and that it had again been printed, and his inference was, that the House of Commons had directed its sale. But there was no proof that such was the case; that allegation was not set forth. But even had it been set forth, were their Lordships to say, that because the petitioner stated that somebody had printed the evidence before him, therefore they were to sanction a breach of their standing orders? Were their Lordships to be deprived of their privileges, because the House of Commons had sanctioned the publication of a report which had been communicated by their Lordships? Their Lordships were not called upon to assert their privileges. He should be the last man to assert privilege, except in a case of absolute necessity; but here they were not called upon to assert their privilege. The party making the present application, and who had violated the standing orders of the House, asked their Lordships to overlook his offence, and to enable him to prove the evidence which had been taken before the Committee by attendance of their officer in the court below. But, as the case stood, it was entirely by itself, and there was no precedent for granting such an application, and it was, therefore, for their Lordships to consider whether they were to dispense with the standing order he had quoted; and allow the prayer of the petitioner, who asked for protection for a violation of their privileges.

The Earl of Shaftesbury

entirely concurred in the opinions expressed by his noble and learned Friend.

Lord Brougham

was greatly taken by surprise, by the statement of his noble and learned Friend on the Woolsack. He never held a clearer opinion upon any subject of law or of privilege, in or out of Parliament, than that which, upon much consideration of this question he had come to respecting it. He hoped he addressed a favourable audience so far, as they had been described by his noble and learned Friend, that they, being judges and members of the highest court of judicature in this realm, would feel the greatest reluctance to shut out any necessary evidence, which in the administration of justice in the court below, was a desideratum; because if the other House of Parliament was disposed to lean rather against its privileges, than for them, even upon ordinary occasions and where culprits were brought to its bar, charged with an infraction of its privileges, how infinitely more did it become their Lordships' House, the highest Court, to lean against straining its privileges against the interests, and in defeasance of the ends of strict, rigorous, impartial justice. But how infinitely more did it behove that House to administer, not the privileges of the House, if that were the question, but to adopt topics drawn from the existence of, and in regard to, those privileges, with a view thereby to a movement calculated to shut the door of justice. He hoped he addressed those who would bitterly lament to have thus to act, if he showed them, as he should undertake to do, with the most perfect confidence, that with every perfect consistency with their privileges, the prayer of this petition might be granted. The whole of the argument of his noble and learned Friend on the Woolsack was grounded on this, that because this party had fallen into his present difficulty, and was thereby dragged into a court of law, in consequence of violating the privileges of their Lordships' House, he could not come and ask their Lordships to aid him out of the difficulty which that violation had brought him into. In the first place, he would admit, for the sake of the argument this to be true, in point of fact, upon which all this consideration rested, viz. that it was in the course of violating their Lordships' privileges the party got into his present difficulties—that he did what he did in making this communication of the evidence given in the Committee upon the subject of New Zealand, legally; and he would ask, even after admitting that, for the sake of the argument—and he admitted it for the sake of the argument only—whether there was any right or ground whatever—whether there was common consistency, or even decorum, in visiting him in this fashion, admitting he was guilty of a breach of privilege? Did they, during the whole 365 days of the year, attempt to exert their privilege against other persons who were guilty of breaches of it? Were their privileges not in a profound sleep throughout the whole of the year? Were they not in as perennial a suspended animation as any animal or being in the whole of God's creation?—and was this the way to awaken the sleeping lion, and to set him to roar upon this unhappy individual who asked their Lordships for justice. What was it their Lordships did every day and every hour in constant breach of their privileges? There was not a newspaper that was not a breach of their privileges, from the very beginning of it to the last corner in it, where the printer's name was inserted. I dare say (continued the noble and learned Lord) you all read those breaches of privileges with abhorrence. I dare say my noble and learned Friend on the Woolsack, when a newspaper is brought to him, cries out, "Avaunt! Carry it away; I won't have it. What! speak of what passes in the House? Is it possible that I can peruse that? Is it possible that I can give my countenance to that—my sixpence to the encouragement of such an enormous offence? Why I am an accessory after the fact if I do so; therefore away with the monstrous violation of the privileges of my House." That would be consistent with my noble and learned Friend's present notion of the doctrine of the privileges of this House, and I do not know that it is not so, though I have never heard it distinctly stated; but at all events, as my noble and learned Friend treats it, your Lordships are all accessories after the fact. What is more, you benefit by it. You pay for it—you furnish the funds for carrying on the breach. You pay the reporters for coming here to report your proceedings—and you open your galleries and give them convenient accommodation, and furnish them with seats, that they may have the better and more comfortable convenience for committing this foul and astonishing offence, which literally astounds my noble and learned Friend to find that it should ever have been committed. What do I make of that? Why, that it does not quite become us to put our privileges into our pockets, for every day of the year, and just when an individual may be prevented from ruin by allowing those privileges still to slumber, we should start up and say, "Oh dear! it is very true we have privileges, which we quite forgot—let us bring those privileges into exercise, and thus compel the individual to submit to an injury, if not to his total ruin." I don't think that is quite consistent; I don't think that is quite decorous, or quite in conformity with the high sense of justice of Parliament." But there was another thing, the noble Lord continued. He did not say, that any privilege of Parliament could go into disuetude any more than a point of law. But the law admitted of consent or assent; and if their Lordships allowed certain persons to do anything, and to publish all their de- bates and all their reports of Committees—had not the printer a perfect right to to say, he had their Lordships' consent for printing what he had printed. They had not stirred nor whispered a syllable against the system that had been pursued, therefore he had their Lordships' consent. He came in the third place to deny that this was a breach of privilege, and that a consent was not only tacitly, but expressly given. His noble and learned Friend had read the resolution, that it was a breach to publish this without the consent of the House; and he had now to prove, that it was published with the leave of the House. He had shown, that in one way already, by showing the tacit consent of the House; but he would contend, that here was a tacit answer in the affirmative to a direct application. As his noble and learned Friend read the resolution, he of course meant to read it, that it was a breach to publish it without the leave of the House had and obtained. And he would shew that, that leave had been had and obtained. The House of Commons sent a messenger to their Lordships, and one or the other of his noble Friends must have gone down, in the solemn manner that was known to their Lordships to be consistent with their proceedings, to the bar of the House, and received a message from the Commons, asking leave to have the report of their Committee upon New Zealand; the question must afterwards have been put by one or other of his noble Friends to the House, and there must have been placed, and exist on the journals of the House, an order directing a copy of the report to be sent to the House of Commons. Therefore he would take it that his noble and learned Friend on the Woolsack, or his other noble Friend, was prepared to show him an order appended to that order, saying, "always on condition, that the House of Commons shall not make any use of it, that it shall not print it, that it shall only read it itself, and that it shall not sell it." But here comes the House of Commons, and opened a libel shop—and asked to have their libels retailed at 6d. or ls., according to their length; then, their Lordships being in the other House of Parliament, and the proceedings originally emanating from them, they became partners in the libel shop—not sleeping partners, but avowed partners. They knew the order of the House of Commons. They had it before them, and they were aware that they had resolved that their proceedings should be sold; and this was one of their proceedings. Now he wished their Lordships only to look at what was the strict letter of Parliamentary proceedings, and what was the strict letter of the law. His noble Friend who spoke last was an old Member of Parliament; but his noble and learned Friend on the Woolsack, he might say, was only a Member of yesterday, though it might have been better for the country if he had been a Member for a much loner period. His noble and learned Friend opposite (Lord Lyndhurst) had a Parliamentary experience of twenty-three years, and he was sorry to say, himself had an experience of thirty years, and he could assure his noble and learned Friend on the Woolsack, that just as he acquired Parliamentary experience, so would he lose his love for privilege, and be inclined to lean not to, but against, privilege. If anything was more odious, more hateful than another, it was the allowing a privilege to lie dormant till it was made a topic in an argument for injustice. Lord Coke had said of privilege, "Omnibus quæsita multis ignorata paucis cognita," but he might in these days say of privilege, "Omnibus invisa, multis infracta, paucis cara." But if privilege was odious in itself, it was still more odious to draw it out as an argument in a case like the present, when they would not venture to make a motion of a substantive character asserting it. Every report brought into the House of Commons was read at the table, and ordered to be published, and it was quite immaterial whether the report came from a Committee of the other House, or was communicated by their Lordships. He did not mean to say, that it was not a breach of privilege to publish the proceedings of the House of Commons. But were their Lordships so fond of the very name of privilege, that, not content with asserting their own rights, they must also stand up for the privileges of the House of Commons That would be carrying privilege to the very verge of insanity, for it could not be believed that their Lordships would be so touchy on the subject that the moment privilege was mentioned, they would start up and cry, "Oh, it is all one; it is a question of privilege, and whether it relates to the privileges of the House of Commons or of the House of Lords makes no difference." Their Lordships should, moreover, recollect that the House of Commons had sanctioned the publication of their proceedings. Mr. Lawson had bought the report at the Commons' shop, the money had gone into the Commons' purse, and the Commons had thereby given him leave to make what use he pleased of what he had bought. He therefore maintained, that the argument failed not only in point of fact, but in point of law, and that no breach of privilege had been committed either against the House of Lords or the House of Commons. He had but little more to say, but he must really beg their Lordships to bear with him for one moment, although he had to apologize to their Lordships, and particularly to his noble and learned Friend, for thus taking up their time, knowing as he did that his noble and learned Friend had quite exhausted the arguments upon this question. If their Lordships meant to maintain their privileges, let them be manly enough to assert them; let them call for the printer to their bar; let them make him an example to all future offenders. Let them mete out to him the punishment apportioned for the offence, if their Lordships knew what the punishment was. But how could they mete out that punishment there? The punishment depended in this case upon the verdict of a jury, which might give 40s. damages, or 1,500l. The punishment, then, would not be inflicted by their Lordships, although they would be the moving cause of its infliction, and the defendant would be punished, not because he had committed a breach of privilege, but because another individual had been civilly injured, while in punishing the defendant they would reward another man who had nothing to do with the matter. With respect to another argument, and it was the last to which he should advert, which had been used by his noble and learned Friend (the Lord Chancellor), he was not a little astonished to hear him say, that the defendant might have gone to trial without putting this plea upon the record, and that he did not see the absolute necessity of a justification. If his noble and learned Friend had ever studied the science of special pleading, he must have entirely forgotten what he had learned. Every one who knew anything about pleading was aware, that in a civil action, when the publication could not be denied the only defence was, that the alleged libellous matter was true, and that must be set out in a special plea, which could only be proved by producing the evidence for which the defendant now called. His noble and learned Friend, said, that the defendant might have gone to trial upon the general issue alone. But the defendant had the assistance of a counsel extremely learned and astute, a great champion of privilege, one who was not likely to plead a justification, if the general issue would have sufficed, and who had not only advised upon the case, but had settled the pleas; he alluded to his hon. and learned Friend, the Attorney-General. But his noble and learned Friend (the Lord Chancellor) seemed to think, that it would have been sufficient for the defendant to deny, that he was actuated by any malicious intention or motive. But the defendant could not have pleaded that, for it would have been struck out upon special demurrer, since the law of England said, although he could not concur in its policy, that if a man were charged with publishing a libel, the malicious intention was absolutely and entirely immaterial, and if the publication were dictated by the blackest motives, in order to gratify the most infernal spite which raged in the bosom of man or fiend, yet, if the words were true, the intention was utterly immaterial. That was the rule of the law, and consequently no man could allege on the record, that he was not actuated by malicious motives. He should now sit down with the most perfect satisfaction, that their Lordships could not refuse their assent to this motion. But he would first refer to two cases, "the King v. Creevy," and "the King v. Abingdon," in which it was agreed, that a breach of privilege was committed if speeches made in either House of Parliament were published, unless leave was given by either House. In the case of "the King v. Creevy," which was tried at the Lancaster summer assizes in 1813, before Mr. Justice Le Blanc, Mr. Creevy had made a speech in Parliament reflecting upon an individual, and he had afterwards published that speech. The party assailed, considering that it was necessary to clear his character, preferred a bill of indictment against Mr. Creevy, which was afterwards removed by certiorari to the court of King's Bench. There were, of course, two questions to be sub- mitted to the jury, and one of them was, whether Mr. Creevy ever made the speech in Parliament at all, or whether he had not invented the speech and published it afterwards. Now, if their Lordships refused Mr. Lawson the privilege which he sought, it would go to the jury, that he had fabricated the report, and that no such evidence had been given before a Committee of that House. But in the case of "the King v. Creevy," in which he had been counsel, he tendered a witness, a Member of the House of Commons, to commit a breach of privilege, according to the argument now used, by saying what passed in the House of Commons on the occasion when the speech was made, and no objection was raised to that course by Mr. Justice Le Blanc, or the Attorney-General for the county palatine of Lancaster, the late Mr. Justice Park. He, however, was ultimately obliged to make an application to postpone the trial for a week because of the sudden death of the sister of the Member whom he had called as a witness. The Court, however, called on the Attorney-General to avoid the delay by admitting, that the printed speech was the same as that delivered in the House of Commons. This was all that was wanted here; but if their Lordships refused this application, not one of them could publish his speech, or even go to a public meeting and say, that he had heard another of their Lordships say so and so, but it must go to the jury that the speech was fabricated, because he would be guilty of a breach of privilege. If this doctrine of privilege was pressed to such an extent as some would press it, the consequences would be most serious. The noble Earl (Roden) was about to bring forward the subject of the Irish alleged misgovernment, and in so doing would state a great many things, reflecting not merely on those connected with the Government, but on magistrates, and on private individuals. Whoever published the speech of the noble Earl would be liable to an indictment, or to an action; and as he would not be allowed—according to this doctrine of privilege—to prove the delivery of the speech—it would go to the jury, that he had fabricated the speech, and the penalty would be proportionably greater. Better (continued the noble and learned Lord) better at once say, there shall be no reporting of our proceedings, than to open your doors and invite parties to pub- lish your proceedings, and at the same time tell those who do so, that they must beware—that they incur the risk of punishment—like the Empress Catherine, who after she had murdered her husband, ordered his body to be exhibited, that the public might see there were no marks of violence, but whomsoever approached near enough to see, bayonets were pointed at their breasts. My Lords, if you refuse this motion it will go forth to the world, that you are guilty of the hypocrisy of saying to the world, "people may publish our proceedings—but we are so far from being sincere, that whosoever avails himself of our permission, will be liable to be punished in a criminal proceeding, and to be ruined, perhaps, by damages, in a civil one." My Lords, I have spoken at greater length, and with more ardour, than in my present state of suffering I ought to have done; but my heart is in this cause, and so long as I am in this House injustice shall never, without protest, be committed.

Lord Holland

should be the last man in that House to oppose the motion of the noble and learned Lord, if it were not necessary to defend the rights and privileges of that House. He was aware of the odds which he was encountering when he opposed himself to the two noble and learned Lords on a question which, according to their view of the case, involved points of law. But he did not consider that the question was one in which points of law were involved, and still less was it a question of exerting their Lordships' privileges. To hear what his noble and learned Friend who had just sat down had said, it would be supposed, that those who had formed the Committee were recommending to that House some stern, inflexible, and unjust exertion of their privileges. But this he denied, and so far from exerting their privileges were they, that the petition called on them to wave their privileges, because the defendant had departed from the rules of the House, asking their Lordships to grant him peculiar advantages, and asking that favour on the ground that he had done what their Lordships had forbidden to be done. This was what he considered to be the nature of the petition made to their Lordships. There was, he apprehended, no substantial injustice in the refusal, because the evidence did not appear to him to be at all necessary, further than to prove an averment in the plea which the petitioner had pleaded, so far as he was informed, somewhat unnecessarily. Let their Lordships, however, look at the proceedings in this case, which had been very fairly stated by the noble and learned Lord who first introduced this subject. In a committee of their Lordships a question was put to a witness, whether he would believe another man on his oath. The witness was at first reluctant to answer, but being told that he must give an answer to the question, he replied, that he would not believe him upon his oath. The next stage in the proceedings was this—the report was laid before, and at the request of, the House of Commons, was communicated to the other House of Parliament. It then became the property of the House of Commons, and according to the usages, or at least the late usages, of that House, persons were authorized to sell copies of that report. It was contended, that this circumstance of authorizing the sale by the House of Commons altered their Lordships' privileges. But he could not see, that their privileges were to depend upon the conduct of the House of Commons. He could not imagine how the conduct of the House of Commons could alter either the rights or the privileges of that House. He agreed with his noble and learned Friend who had described so eloquently, as he always did describe, the character of privilege. He agreed also with him, that there was an absurdity in enforcing their privileges in the way in which his noble and learned Friend supposed they must be enforced, but if they granted the application made in this instance, they must do so in all others, and not only in all similar cases, but even those which were at all alike. If he could have any doubt on the subject, the speech of his noble and learned Friend would have removed it, for the noble and learned Lord contended, that if an action of libel should be brought against a person in consequence of having made a speech delivered by a Peer in his place in Parliament, such person would be justified in calling on the House to allow him to give evidence through the testimony of the Peer who delivered the particular speech of what had passed in debate in their Lordships' House. According to this doctrine, the noble Earl to whom the noble and learned Lord had alluded (the Earl of Roden), might hereafter be re- quired to give testimony in a court of justice as to the speech which it was his intention shortly to make in that House, or if the noble Earl were not summoned, he supposed, that as the best possible evidence must be obtained, the clerks at the table would be called upon to attend. The consequences of such a course of proceeding he could not, though the noble and learned Lord might, contemplate without apprehension. He contended, notwithstanding the rebuke he had received from the noble and learned Lord, that it was not the mere orders of the House, but an Act of Parliament, which prevented their Lordships from acceding to the motion before them. The Bill of Rights declared, that no speech in debate or proceeding of Parliament should be impeached or questioned in any court or place out of Parliament. He knew he should be told, that he did not understand legal phraseology, but he thought he understood the English language, and certainly if evidence given in one of their Lordships' committees was not a proceeding in Parliament, he did not know what was, and at the same time he conceived, that the summoning a witness to prove upon a trial what had been stated in a committee, was questioning a proceeding in Parliament in a court of justice. His noble and learned Friend had quoted two cases, viz. the case of Lord Abingdon, and that of Mr. Creevy, but neither of them applied perfectly to the point. In the latter case, the evidence as to what occurred in Parliament was admitt d evidence, and in the former, the action, he believed, was a civil action. [Lord Brougham observed that it was not.] He recollected that Lord Abingdon was imprisoned for three months, the prosecutor being a man of the name of Surman; and frequently afterwards Lord Abingdon, when making a speech, used to conclude by observing, "But I won't go on preaching, for I have had enough of sermons." He was told, that in this case a civil action was not brought, but it certainly might have been, and had Lord Abingdon justified himself by saying, that he spoke the words complained of in their Lordships' House, would the House have furnished the means of proving, that such words had been spoken of in debate? If their Lordships admitted the motion in the present instance, it would be utterly impossible for them to refuse a similar application in the case of an action brought in consequence of a published report of any one of their Lordships' speeches. God forbid that he should ask their Lordships to exert their privilege for the purpose of preventing the publication of the usual reports of their proceedings. He had had a longer Parliamentary experience than even his noble and learned Friend; for he had now been forty years a member of their Lordships' House, and he had ever been an enemy to a stern and vindictive exercise of the privileges of the House. But there was a great difference between exerting their privileges for the purpose of preventing what was a venial, and in some instances a praiseworthy breach of them (he alluded to the publication of their proceedings), and not encouraging such breaches of privilege, by a departure from all the rules and precedents of the House, and the positive injunctions of an Act of Parliament. He would be willing to allow, that in a case where life, or limb, or property, was greatly concerned, and where a clear case of necessity for the evidence asked for was made out, the application might then be deserving of their Lordships' consideration; but with all due deference for the noble and learned Lords who bad preceded him, he did not think, that such a case of necessity had in the present instance been proved. The petitioner would, of course, be required to give the best possible evidence in a court of justice; but if he proved, that he was impeded by the privilege of Parliament from obtaining the evidence he now asked for, surely it would be enough for him to show, under such circumstances, that the libel was extracted from a publication under the authority of the House of Commons. As he had before stated, he dreaded the consequences to which compliance with the present application must necessarily lead. But this was not all. There was another subject, the connexion of which with the present question, though the noble and learned Lords did not, he saw plainly enough. It was a matter of notoriety, that in a matter of libel a question was now pending between the other House of Parliament and a court of law, respecting privilege, on which it was their Lordships' first duty carefully to abstain from expressing or implying the slightest opinion. When he heard the noble and learned Lord, who endeavoured to persuade their Lordships to depart from their usual rules and orders, dwelling so much on the fact, that the House of Commons had authorised the publication of a portion of their proceedings, he could not help thinking, that their Lordships, by complying with the motion, would be furnishing a pregnant argument on the nature and propriety of that measure. Would it not be safer, then, for their Lordships to adhere to their rules, and leave that question to be decided by a court of law, rather than imply an opinion on a point with respect to which they might ultimately have to pronounce a judicial sentence? God forbid that the matter should be pushed to such an extremity. He should consider it a great calamity if it was. But where there was a possibility of such an event, it became their Lordships to take no step that might imply either approbation or disapprobation of the proceeding of the House of Commons.

Lord Ellenborough

was a Member of the Committee which had framed the report laid on their Lordships' Table by the noble and learned Lord on the Woolsack. He certainly thought, that the Committee could not have done otherwise than advise the House not to overlook its privileges, and after all that had been stated by the two noble and learned Lords in favour of the motion before the House, he still remained of the opinion expressed in the report. It would be presumptuous in him to repeat the arguments used by the noble and learned Lord on the Woolsack, and by the noble Lord opposite, but he could not avoid expressing his apprehension of the precedent which it was proposed by the motion to establish. The noble and learned Lord opposite had said, that the House of Commons had opened a libel shop, and it was because he was not disposed to make the House of Lords a partner in the concern, that he should oppose the motion. There was great benefit in the publication of the proceedings of both Houses of Parliament, and no one would endeavour to exert dormant privileges in order to restrict that publication; but what their Lordships were now asked to do was, not to overlook that species of publication he had just alluded to, but to give facilities for the publication of that which was libellous. To an application of this kind he could not assent.

Their Lordships divided: Consents 31; Not Contents 18:—Majority 13.