§ The Lord Chancellor
, in moving the second reading of the Printed Papers Bill, said, that in asking their Lordships to give their assent to the principle of the bill, it was unnecessary for him to ask their Lordships to express an opinion on the question of privilege, which had been so much agitated elsewhere. In doing so, he should feel great difficulty, and he should feel no less difficulty if it were necessary to ask their Lordships, in giving their assent to the second reading of this bill, to express any opinion inconsistent with the decision of the Court of Queen's Bench, which had been so very much connected with this question. The question of privilege would remain untouched by anything which the bill proposed. So far from attempting to review the judgment of the Court of Queen's Bench, the measure now before their Lordships provided simply for the application of a remedy to those inconveniences which had been found to result from the state of the law there laid down. He was well aware that those who were advocates for privilege in its highest extent had thought that what was proposed to be done by the bill was something like an abandonment of principle. But he apprehended that on consideration of what was proposed, it would be found that it left the question of privilege entirely untouched. Either House of Parliament might have power to the full extent claimed by any of its members, and yet it might be necessary, in order to carry into effect their privileges, that an easy, quiet, peaceable, and effectual remedy, should be provided for putting the privilege into operation. It did not 555 at all follow, that because Parliament passed a law to that effect, its previous powers were destroyed. It did not take away from the Houses of Parliament the means of enforcing that for which they contended. The question was not whether they did or did not possess the right, but whether it were or were not expedient that some mode should be prescribed, by which this object could be attained, that the right should be put in operation. Therefore any one who contended for privilege in the highest sense would not find the bill at all interfere with what he was anxious to establish. Those who contended that the privilege did not exist, would find that the bill only proposed a legal mode of enforcing that which it was declared ought not to be enforced by ordinary means. The question was really independent of the contest about privilege, which was not at all involved in the present measure, and of which he should say nothing. Their Lordships were not called upon by the bill to pronounce on that question at all; but, assuming the law as laid down in the case decided in the Queen's Bench to be correct, upon which it was unnecessary for him to express an opinion, the question was, whether, under existing circumstances, it were or were not expedient that some remedy should be applied to the difficulties which had been found to exist. He could understand, that if there were any individual who thought it unnecessary for the exercise of the functions of the Houses of Parliament, that they should Lave the power of printing or publishing any papers at all, such a person might object to the provision of the bill, inasmuch as it professed to give facilities for the exercise of those rights or privileges as they might be called. He need not occupy their Lordships with arguing the proposition that such rights were necessary, because he apprehended that no man conversant with the usages of Parliament would contend that it was possible for the Houses of Parliament to exercise their important duties without the power of printing and publishing to some extent. If the Houses of Parliament must have the power of printing and publishing to any extent, their Lordships would necessarily come to the conclusion, that the power of limiting that right could not be confided to another tribunal. A great part of the difficulty felt by some individuals upon this subject, a rose from their not accurately under- 556 standing the legal operation and meaning of publication. In common parlance, publication was the act of a bookseller in selling a work. But their Lordships were not to be informed, that almost any communication to any individual, was a publication. It was hardly possible that there could be printing without publication in the legal acceptation of the term. It might take place if an author printed his own work, but where an agent was employed, there was publication; therefore, there might be legal publication in the simplest operation with regard to any paper with which the House might think necessary to deal. There was great misconception as to the course which had been at all times adopted by the House of Commons in reference to publication. With respect to their Lordships' proceedings, he had not had an opportunity of inquiring, but the House of Commons had exercised the right of publication for two centuries. The selling of papers had long taken place, though it had not been always in the same manner and form. Through that whole period, no doubt, the orders were applicable to particular papers. The difference in the extent of the circulation, however, made no difference in the legal question. In point of fact, the order of the House in 1835, which regulated the present mode of selling papers, had not added to the circulation. It had rather diminished the circulation as compared with the period immediately preceding. He thought that he could satisfy their Lordships, that unless the Houses of Parliament were to be prohibited from printing and publishing at all, he might confine himself to printing only; all power, jurisdiction, or control, as to the mode in which the right was to be exercised, must be confided to the House itself. If it was not to be so confided to the House itself, or if any limits were to be imposed upon the exercise of the discretion of the House in printing or publishing, then the object of the bill would fail—conflicts would necessarily arise. No one would dispute the necessity of printing and publishing in certain cases. Many instances might be adduced in illustration. He would only mention one. Suppose the House of Commons found it necessary to prepare articles of impeachment against a public officer. The more gross and direct the violations of duty complained of, the stronger would be the illustration. It was 557 perfectly impossible that the House of Commons could carry out such a measure without printing and publishing, in the legal acceptation of the term. It would be a part of their regular proceedings. They could not print their charges, or exhibit their articles of impeachment, without giving ground for an action. If the action was brought, the Hou6e of Commons would have to choose between permitting judgment to go by default, and damages to be assessed, and permitting the officer of the House, against whom the action was brought, to plead, and to prove in justification the subject of the impeachment. The result would be, that their Lordships, when they came to investigate the matter of impeachment, would find a verdict one way or the other. It was obvious that that could not be endured. The present state of the law involved inconveniences which it was absolutely necessary to remedy. It was obviously necessary that there should be protection for officers against actions. The right of publication was, in fact, conceded. Who were to be the judges of it? Suppose it to be exercised on any question, whether of necessity or expediency, or of Parliamentary usage, it was quite obvious than any other body than Parliament could not judge of the necessity, expediency, or Parliamentary usage justifying the act which the House of Commons might think necessary to adopt for the benefit of the public. In stating this, he was asking for no more than was conceded to tribunals of infinitely less dignity, and infinitely less entitled to the confidence of the public than the two Houses of Parliament. He might illustrate this by going to inferior tribunals, but he would call their Lordships' attention to instances which occurred before the higher tribunals of the country. His proposition was this—that if either House of Parliament ought to exercise the privilege, it must be the judge of its own privilege: that was to say, of the extent and manner in which it was to be exercised. If it was to be submitted to another tribunal it would cease to be privilege. It might be law, but not privilege. It was quite impossible that Parliament should prescribe or anticipate all the circumstances in which a privilege of this sort ought to be exercised. Whenever it was found essential to the interests of the public that any species of jurisdic- 558 tion should be exercised by a court, the court itself was permitted to judge of the circumstances under which it ought to be exercised. It was his duty to preside over what might be called the officina of libels. Two or three thousand bills were annually filed in the Court of Chancery. One half of these were libels, and would subject the parties to actions unless protected. It frequently happened in those cases that litigants did not confine themselves to stating some grievous case against the party opposed, or to the subject matter of the contest, but indulged their fancy and their venom, in stating what had no reference to the subject matter. Although these statements were unnecessary for the purpose of litigation, and were improper to be made, yet no other court could take cognizance of them. The Court of Chancery itself, upon complaint made, investigated the matter on its own authority, without permitting it to go elsewhere, and if it appeared that scandalous matter had been introduced, not pertinent to the matter in issue, the court took upon itself to make compensation to the party injured, by expunging what had been improperly introduced. There were a great variety of courts which had the power of committing for contempt. It was a necessary power. They could not exercise their functions or perform their duty to the public without it. It might be abused. A court might not exercise that cool judgment by which it ought to be directed, but no other court could interfere. The party might sue out his habeas corpus and might be brought before a higher tribunal, but if the court which committed him had jurisdiction to commit for contempt, the higher court would leave him to that jurisdiction, however improperly it might have been exercised. Another familiar instance of jurisdiction, was the Court of Chancery having care of property, and necessarily employing many agents. If matter of complaint arose against the agents in the exercise of their functions, the suitors could not apply to any other jurisdiction than the Court of Chancery. Whatever their misconduct might be, though it might entitle a party to ask compensation by action in an ordinary case, still the Court of Chancery did not permit the suitor to resort to any other tribunal; but inquired into the injury complained of itself, and awarded compensation, or 559 punished the officer if the case was made out. This was essential to the exercise of its functions, and it illustrated the principle, that the necessity of a particular jurisdiction being conceded, it immediately followed, that the exercise of that jurisdiction must be left to that court, or tribunal, or assembly to which it belonged. It was indispensably necessary, both from the nature of the duties the Houses of Parliament had to perform, and the analogy of all courts, that having the power of printing, the discretion as to the extent and manner of exercising it must rest with them. The decisions of the Court of Queen's Bench established this—that the party against whom an action was brought for libel was not protected by showing that he had published it by order of the House of Commons. Precisely the same question might arise upon a publication of their Lordships' House. Their Lordships ordered papers to be printed and published. He omitted the sale, because it had nothing to do with the consequences of the present state of the law. Suppose their Lordships to exercise their privilege by appointing an officer to publish a document. Then, as it stood decided, the officer could not be protected from the action of an individual complaining that the document was a libel by showing that he acted by an order of their Lordships. But their Lordships could not exercise their right of publication without employing some agent, and, therefore, the question was left in this singular predicament. The right of the House was acknowledged, at least it was not questionable by any body, but any one through whose agency it might be exercised, was liable to action in obeying their Lordships' order. Therefore, unless priming and publishing were to be prohibited, it was necessary to protect the agents appointed to perform their duties. The bill proposed to give that protection. It assumed the accuracy of the law laid down. The consequences of that law were such as to hamper and interfere with the ordinary functions of Parliament, and the bill proposed a simple and effectual remedy, and at the same time, a remedy the least likely to lead to any conflict between the high authorities of the state that could be devised. The mode of remedying the inconvenience was by making the authority of either House of Parliament a justification of an alleged libel. 560 That principle might be carried into effect in various ways. It might be carried into effect by declaring that the authority of the House should be a justification, and that the party against whom the action was brought ought to plead that he was acting under the authority of the House. That course might lead to protracted litigation. The question could not be decided until a jury had ascertained by a verdict whether the fact alleged was true, namely, that the party had been acting under the authority of the House. It was quite immaterial to the party complaining how the matter was done. If he was to be barred by the authority of the House, it was immaterial to him how it was accomplished—whether at an earlier stage or after an action had been tried. But it was very material if it was the object of Parliament to provide a remedy for the present state of the law, and to avoid, if possible, those unfortunate conflicts between different authorities in. the state. There were two other modes suggested of carrying the same principle into effect, which bore a close resemblance to each other. One was, that an order or certificate of the publication having taken place by order of either House of Parliament should be sufficient, on being brought into court, to make the court stay the proceedings. The court should be obliged to stay further proceedings in the action upon a certificate that the subject matter arose under the order of the House. If nothing more was said, the enactment would of course require an application to the court, and it would require the act of the court to stay proceedings. This plan, therefore, might bring the two authorities, although not to the same extent, into collision. The bill proposed what was not quite the same, but what was very much like this plan. It proposed no application to the court, but simply, that on a certificate of the authority of the House being brought to the officer of court, the production of the certificate being fortified by affidavit, the officer should at once stay proceedings in the matter. This mode of proceeding would allow the object which was desired, and was less likely to bring the two great authorities into contest than any other. It did not differ much from the other plan to which he had referred, but seemed less likely to lead to an injurious contest. There was no ground for complaint against this plan, and he was 561 not aware of their being any objection to it. It was quite clear, that it could not be considered any disrespect to the court, because there were very many instances in which the same thing was done, and in which it was the business of the officer of the court to stop proceedings without any application to the judges. He trusted their Lordships would be of opinion, that the provisions were expedient to remove the possibility of collision, which, if it occurred, must necessarily prevent the good which it was the object of the bill to effect. So far as related to the prospective effect of the bill. It also proposed to stay any actions which had been brought since the commencement of the Session, or now pending, for the exercise of the jurisdiction of the House of Commons, under the name of privilege. He apprehended their Lordships would have no difficulty in acceding to that part of the bill, because it was quite obvious that if actions were permitted to proceed, it would be a violation of the order of the House of Commons, and a violation of what their Lordships would declare, if they passed the bill, ought to be the right and privilege of the House of Commons. There was one further object, which did not immediately grow out of the subject of printed papers, though it was connected with the same history. Their Lordships were aware, that there being an order of the House of Commons against proceeding in an action, the attorney was guilty of a violation of that order of the House. This case was made the subject matter of another action, and though this was an action of a different kind, it was so connected with the former action, that he believed their Lordships would find no difficulty in the proposition for staying both. He understood that a petition had been presented by a noble Lord, praying that the individual referred to might be heard at their Lordships' bar, but this was a question which would more properly come into consideration at a future stage of the measure. If he (the Lord Chancellor) were asking their Lordships to enable the House of Commons to do that which they had not done before, no doubt this would be a very serious demand, but all he was asking of their Lordships was to give effect to that which had been the practice of the House of Commons for, at least, the last two centuries. That this practice of that House was a right course 562 was shown in the fact, that during that period no action had been brought, no complaint made against the House of Commons. The public had always acquiesced in what had been done, and he (the Lord Chancellor), therefore, apprehended that their Lordships would at once admit, that the present proposition was very different from one tending to introduce a new system. The case was simply this. That a difficulty having arisen, and the law being such as not to enable the House of Commons to exercise their duty without incurring much inconvenience in certain cases, it had been deemed advisable to place the matter on, such a footing, by legislative enactment, as would enable that House to exercise their privileges without any such inconvenience, and to protect their officers, a matter equally important to both Houses of Parliament. The noble and learned Lord concluded with moving that the bill be now read a second time.
§ Lord Denman
was anxious to take the earliest opportunity of saying, that he thought their Lordships would best consult the public interest by acceding to the motion of his noble and learned Friend. It was impossible that any one could have brought the measure which was the subject of that motion before their Lordships in a more candid and considerate manner than his noble and learned Friend had done. But the nature and tone of those discussions which for the last four months had occupied the public mind would make it appear not unnatural for him to offer a few observations to their Lordships, for the purpose, he trusted, of removing the misconceptions which appeared to have generally prevailed on this subject, to rescue persons who had done nothing but their duty, from that undeserved censure to which they had been subjected, and to state the only grounds which, upon his view of the case, justified the adoption of a great, an extraordinary, but at the same time, a temperate measure. He would proceed at once to state the facts on which so much misconception had prevailed. An action was brought more than three years ago, and came on for trial in the Court of Queen's Bench, where he had the honour to preside. But he would take the liberty to observe, that that was not the first proceeding of importance in the case. On the very day before that upon which the cause was to 563 be tried before a jury, the House of Commons entered into a debate upon the subject in dispute, which debate appeared early the next morning in the public prints. Not only upon some preliminary proceedings in the course of that action, but upon an order made by some of the judges, the House of Commons had thought fit to entertain a debate whether or not they should interfere with the usual course of the law. He must state at the very outset his strong conviction, that if anything of that kind was to be permitted in this country, there was an end to the boasted freedom of the subject, and the independence of our legal tribunals. If, whether by a King's letter, or by a resolution of either House of Parliament, or by the intrusion of any great authority of the State, such an interference was to be permitted with the courts of justice of this land, he repeated, that they would be divested of all credit and stability. The trial came on, the individual preferred his action for libel, and the officer of the House of Commons was defended by most able counsel. After the cause was opened, it was clear that there were several defences. In the first place, it was a question whether the publication complained of was a libel at all or not, and then, if there was any other justification than that pleaded. He had great doubts at the time whether it were a libel, and he expressed those doubts very strongly, and thought, from the nature of the discussions which took place, it was extremely to be questioned whether it were a libel or not. The Attorney-general thought fit to give up that point, and then the question was, whether the justification of the truth which had been pleaded was or was not made out satisfactorily to the jury. It was made out satisfactorily to the jury under the charge which he thought it his duty to lay before them, not at all concealing his opinion, that the justification was made out. The jury came to that conclusion, and the defendant was acquitted on that ground. But the learned Attorney-general thought it his duty to put forth another defence, arising from certain resolutions passed by the House of Commons in the years 1835 and 1836, in the former of which they determined that they would make all that they printed and published for the use of Members accessible to all mankind at the lowest price. Secondly, they de- 564 termined that this sale of papers so printed and published should take place under the authority of the House of Commons. Here alone it was that a difference arose between his noble and learned Friend and himself. When his noble and learned Friend said, that nothing had been done but what had prevailed for upwards of two centuries, he must take the liberty of saying, that what had been done was entirely novel and unsupported by custom. The effect of the general resolutions of the House of Commons appeared to be, that privilege was to be exercised, not in reference to an act of indiscretion in any particular case, but for any public purpose, and in the discharge of any one of the functions imposed by the constitution upon the House of Commons. It therefore struck him, that the only ground of justification was to state, that the House of Commons had the power, in the name of privilege, to do whatever they chose to call by that name, and in consequence of the course which was taken by the House of Commons, and by his learned Brother, he felt it to be his duty, on the part of the people of England, to take the ground he had taken, and to say, that he did not admit the name of privilege as claimed, and would not give it the name of law. He might have expressed his opinion too warmly and too largely, but that the doctrine he asserted was right he was firmly persuaded at that moment, and he felt, that if he had thrown a doubt by any delay upon a proposition of this importance, which was so clear to himself, he should have betrayed that duty which he was placed in the court over which he presided principally to discharge. Was he right in supposing, that that was the ground on which alone such resolutions could be defended? A committee of the House of Commons met to consider this question, and framed a most learned report; they entered into a full discussion of all the authorities on both sides, on both the history and the law of the question, and they came to these conclusions: first, they stated the necessity for the publication of papers: secondly,That by the law and privilege of Parliament this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges, and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, 565 is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure and to the punishment consequent thereon;" and thirdly, "That for any court or tribunal to assume to decide upon matters of privilege is inconsistent with the determination of either House of Parliament, and is a breach and contempt of the privileges of Parliament.Was that, then, the justification for their publishing those documents, as though they must have a right to sell all that they printed because they had a right to do all that they pleased? He did not understand that to be the law of England. He wished most sincerely that those Gentlemen, who he was sure felt a strong conviction of the truth of what they were stating, having reasoned it out in their report as they had done, had refrained from using language involving menaces and threats against the legal tribunals of the country, which could not have any effect upon their decision. He believed that if such language could induce the courts of law to form any different opinion from that which their own sense of justice and and conscientious view of the law indicated, the House of Commons would deplore such a result. In consequence of those words, of which he had no doubt the individual took advantage, a second action was commenced; and in this second action the sword of truth was thrown away, and the sword of power was resorted to; and those resolutions were brought before the court as laying down the law of the land. In the first instance he was bound to give his opinion upon the law upon which he was desired to direct the jury; in the second place, the judges were bound to give their opinion in the demurrer raised to the second action. Therefore did he repel with indignation the insinuations which had been thrown out elsewhere, that the judges had come as volunteers into this question, and that they came to assert a power in this case which they declined to exercise in another. The judges were called upon to act; they had no choice of remaining quiet and indifferent, but they were bound to deliver their opinion on the question when it was brought before them. He would not enter particularly into the meaning of these resolutions of the House of Commons; but it seemed to him that if they were the law of the land, the people of this country had been mistaken for years and centuries in think- 566 ing that they lived in a land of freedom. For if the House of Commons could say—"We are the sole judges of the existence and extent of our privileges," it was but the power to create privilege, in spite of the law, and, as soon as the law was passed, to dispense with it and supersede it, and that, in fact, the country must be ruled by their privileges. That was the extent of privilege claimed by the other House of Parliament. But when had their Lordships claimed such privilege for themselves? On one of those great occasions when the question was mooted—in the case of "Ashby v. White,"—a resolution was adopted by their Lordships' House, which remained on the journals, and never had been repealed, and which expressly stated that neither House of Parliament had power to create any privilege but that which was authorised and supported by the law. How utterly inconsistent was that with the practice of the other House of Parliament! How different was that resolution from the resolution adopted by the House of Commons! Why, if both Houses of Parliament enjoyed such powers as were claimed by the other House, they would clearly be beyond all control, except at that unfortunate moment when they might happen to come into collision with each other. He wished to know at what period in the history of this country and its constitution this power was first founded, of either House of Parliament strictly having the entire control and managing power of its own great resources with respect to privileges. In following up this question it would be necessary to give some degree of consideration to various circumstances and incidents which had transpired in past times. Now, as to the right of either House of Parliament declaring its own privileges, there was a remarkable example in the time of James I., that it did not exist, because there was an unfortunate man named Floyd, who, for speaking some light words of the Elector Palatine and the Electress, was sentenced by the House of Commons to lose his rank in society, to be scourged, to be pilloried, to be imprisoned, and to have his fortune confiscated. Now, see the difference of the conduct of the House of Commons in that day. The House of Lords said to the House of Commons, "This is no business of yours, this is our business; we will take upon ourselves to punish this individual; you have no right 567 to do so." What was the answer of the Commons? That either House of Parliament was the judge of its own privileges? No. On the contrary, they said, "You are quite right." They made a submissive apology, and only desired that their Lordships would not make the sentence on the delinquent less severe than they had made it. The same sentence was in the same terms passed, and carried into effect. Now, suppose the House of Commons had carried this sentence into effect, what would have been the result of going into a court of law? If he had sued his habeas corpus, and the return had been a general warrant far contempt, he must undoubtedly have been returned to his imprisonment. But supposing in the case of confiscation the question had arisen as to the disposal of property, notwithstanding the confiscation by the House of Commons, he apprehended there could be no doubt that the property would have been restored to the unfortunate man. But then, when the sheriff came to restore the property, what would become of the sheriff? He would be imprisoned in a dungeon, and made the object of the base buffoonery of those servile retainers of power, who never love it until it acts with injustice, tyranny, and oppression. He confessed that he could scarcely express himself on this subject without feelings which he was anxious to repress. The man Floyd was represented in that very House of Commons, which recommended the House of Lords to pass that severe sentence upon him which they had first imposed. If it were said he was only an individual, and an individual must suffer for the good of the people, he would ask, how had this privilege operated with respect to the great mass of the people? Because, if there was one right above all others in which the great mass of the people were interested, it was that of petitioning Parliament upon the conduct of the great public officers of the country. In the time of Charles II., a more enlightened period than that to which he had last referred, certain subjects of the Crown thought it not convenient that Parliament should be called at the time proposed, and they petitioned the King not to call the Parliament together, in the exercise of a most undoubted right. As soon as the Commons met, they said that this was a breach of privilege. "Because you thought," said they, "that the Crown 568 would do wisely not to summon us together, for this you will be sent to gaol." Accordingly, one of the most important cases upon record arose. It was quite plain, that if that privilege of petitioning was to be interfered with, it would very soon follow that the House of Commons would punish a voter who had voted for an unpopular candidate among themselves, or they might inquire who voted for local officers, and punish them, or what newspaper a publican was in the habit of taking in, and punish him for not taking a different one, or do anything else that their jealousy might suppose to be dangerous to their privilege. In consequence of that decision of the House of Commons, one of the King's subjects was arrested by the sergeant-at-arms, imprisoned, and money—about 30l. (no small sum in the time of Charles 2d)—was extorted from him. An action was brought for false imprisonment, and for the extortion; the latter act no one accounted a lawful one. The jurisdiction of the House was pleaded, a demurrer was taken, and the judges overruled the plea. After the revolution, and after the passing of the Bill of Rights by the convention Parliament, the two judges of the land who had decided the case, and awarded damages to the plaintiff, were brought to the bar of the House to account for their conduct in so doing. It was disgusting to think that two honourable Magistrates of this country should have been called upon to answer for what they had done, when they had done nothing but their duty, and there was no pretence for exposing them to any such investigation, nor was any privilege at all invaded. But if the right to petition was a high breach and contempt when no Parliament was sitting, how much greater must be the contempt of petitioning when the Parliament was sitting, and to state in the petition any disapproval of the conduct of Parliament! A petition was presented in the reign of King William, requesting the Parliament to aid the King with more power against France, the petitioners thinking that not enough had been done. The petition came from Kent, and contained language which was, perhaps, rather strong, but not very extraordinary. The gentlemen who presented it were some of the grand jury of the county of Kent, and they were actually sent to gaol as persons who had been guilty of a breach of privilege. They were defended by the 569 most popular of all writers in those times, De Foe, and by Lord Somers, who wrote a tract on the right of petitioning, and a remonstrance against the treatment which the petitioners had received. He did not mean to repeat the statements of those writers, but to advance some general arguments in support of his opinion on this question, in answer to those who had impugned it in another place. In one of the resolutions in which this unlimited power was claimed, it was asserted to be necessary to contend against the Crown on certain occasions, and to prevent the Crown from being too strong for the people. But what would be the consequence, supposing, instead of contending against the Crown, it was to contend with the Crown and against the people, which was the case for a long course of years, during the whole of the latter part of the 18th century? During the whole of that period, the popular party in this country were constantly contending against the unwarrantable assumption of power by the House of Commons. Every one must recollect the language of Lord Chatham, with which he would not trouble their Lordships, for he was quite sure that after that they would be unwilling to listen to anything coming from himself, when that great man condemned the conduct of the House of Commons, and asked to what end they had been so long contending, if that arbitrary power which had been placed in the hands of the Crown, was now to be transferred without diminution to other holders. Lord Chatham spoke most strongly against delegating such power to a popular assembly, and then the great popular writer of the day, "Junius," took up the argument, and pointed out the fatal consequences which would ensue if such power were consigned to the possession of an irresponsible body. What he was now saying had reference to the pretensions set up by the House of Commons of an exclusive right to judge of their privileges, and thereby to create privilege. It was necessary to make a stand in the courts of law against assertions of that description, when they were put forward; and in the case of Sir F. Burdett, in 1810, it was remarkable that the number of those who wished to prevent any appeal to the law on the subject of the committal of his hon. Friend amounted to no more than fourteen. There were only fourteen persons who thought that it was not a fit and proper thing to 570 submit the exercise of the privilege to the decision of those courts which were bound to know privilege as well as every other part of the law, and which, on that occasion, decided in favour of the privilege. He was aware that it had been supposed that the great popular party on that occasion took the high privilege ground, and so some of them certainly did, in their declarations; but when the matter came to be considered, they found that it was impossible, consistently with justice, to prevent that course from taking place, and for this reason—that it was possible that the warrant itself might have been exceeded by the officer who executed it, and therefore injustice would have been committed by not allowing Sir F. Burdett to question all the acts committed by that officer under colour of the warrant, which would only justify him in going all necessary lengths for the execution of justice. On that occasion, however, there were some great exceptions to the list of liberal Members of Parliament, who supported the doctrine of privilege in its utmost extent. Lord Erskine, who was then in that House, Sir S. Romilly in the other House, and Lord Brougham, at that time also a Member of the House of Commons, took a most decided part against the notion that privilege should supersede law. He mentioned the last name more particularly, for the purpose of asking whether there were any room for making it a matter of accusation, when that celebrated man, the prop of popular rights, and the ornament of the popular cause, delivered that opinion in the House, and afterwards defended and illustrated it in the case of Lord Wellesley, and whether any motive could possibly be attributed to him for taking such a view of the subject, but that of a general regard for the constitution of the country, and the rights of the subject! He had felt so painfully certain of the collision into which he was likely to fall, in consequence of the doctrines which were maintained by the supporters of privilege, that on the day when he had been called upon to deliver judgment in the case of Stockdale, he had, in the confidence of friendship, communicated to him his apprehensions of the situation in which he was likely to be placed, and his sentiments respecting it; and it was with great comfort he recollected that Lord Brougham stated it to be his opinion that the doctrines which he (Lord Denman) had explained, were such 571 as were necessary to be laid down, and that the language he had used was such as was rendered absolutely necessary by the nature of the case. This great power, this large and indefinite assumption of pronouncing on privilege, was not claimed by the present bill. He had the satisfaction of thinking that the House of Commons did not put forward their claim to the protection of printed papers on any ground of that description, because if they had still persisted in this assertion of extravagant privilege, now that it had been brought into question and contradicted in a court of law, they would not come to complain of a mere impediment being thrown in the way of the circulation of a few papers, but to complain that the constitution had been violated, and that the infraction of its principles must be stopped. On the contrary, they came forward to claim a remedy for a very small portion of the inconvenience that now existed. These were the observations he had to offer on the first part of the judgment of the court; the second part of the judgment was of a totally different character. The question was as to the existence of the privilege of publication in point of fact, and certainly there was no more comparison between the importance of those two questions than there was between the existence of a free constitution and the particular mode in which certain details should be brought into operation. This part of the case did not at all vary the problem of law as to the right of the courts to judge of privilege, but placed the matter on a footing entirely different, reducing the question to one of fact, which might be doubtful, and on which persons might decide differently, according to their own view of the evidence. He, for his part, must say, that in the antiquarian controversy which was opened in the course of the able and elaborate argument delivered before the judges, the historical research which was produced appeared to him to fail altogether of making out the point sought to be established. To him it appeared completely unsatisfactory, as it did also to his learned brothers on the bench, who he was sure were as unbiassed as any judges who had ever sat in a court of justice, and who examined every statement and argument with a degree of study, of care, and of self-restraint, such as any man who was called upon to exercise the judicial office might well be proud of. He would ab- 572 stain from entering into any review of the arguments on which the conclusion announced in the judgment of the court was founded; indeed, the length of the judgment was an objection which he knew could not be got over. It was such, that he was quite certain the great majority of those who condemned it had never read it; and it was also true, that it was a judgment overruling an argument of the greatest ability and research, which took up no less than sixteen hours; so that the necessity of entering at length into the arguments adduced by the counsel necessarily imposed that character on the judgment. He found that to one subject not less than seventy-six paragraphs of the argument were devoted, and there were 100 on another. Without reference to that argument the judgment could not be clearly understood. From what he had read of the late discussions respecting privilege, although he had not had the opportunity of following them fully, the question as to the protection of papers seemed now to be put on rather different grounds from those on which it was made to rest before the judges. The ground on which it was claimed seemed now to be, that the House could not do without it, that they could not legislate wisely without possessing it, always remembering that the privilege of indiscriminate sale, of unreserved publication, and wide circulation, was claimed without reference to any peculiar case, or any particular function to be executed. He had most carefully endeavoured to find why the House should exercise such a privilege, and what were the functions which required it, and had not been able to discover. The reasons alleged appeared to him such as would not bear out the proposition for a moment. It was said, that the House must satisfy the people of the grounds on which they passed laws. Was it to be said, that the House was to proceed on ex parte statements, on statements made by parties who had an interest in the matter to be decided on statements proved to be false? Was it satisfying the people of the grounds of their legislation to expose written slander to sale and circulation throughout the kingdom? They were told that the House of Commons must be able to vindicate their own conduct to their constituents. Was that to be accomplished by slandering absent individuals, by the indiscriminate sale of printed calumny? The House of 573 Commons declared that they were averse to go to their constituents and tell them that every petty court in the kingdom had a right to judge of the existence and extent of their privileges. The House of Commons said, that it was their duty to inquire into all delinquencies, and no doubt in all the circumstances for which they possessed that power, they must possess the power of vindicating their judgment. Was that to be done by the premature circulation of evidence taken ex parte? Was it not rather, at least according to the principles of English law, conformable to practice that enquiries of this kind should be secret, and not brought forward before the party accused was fully informed of the charge against him? It was said that the House, among other high duties it might have to perform, might be called on to deliberate on the best mode of excluding the heir apparent from the succession. He asked, was it the proper mode of doing so to poison the public ear by false statements with respect to facts, false not on political grounds merely, but in them-selves? Here again history afforded a very remarkable example of the dangers to which an abuse of the privilege of publication might lead. They all knew that one Dangerfield, in order to recommend himself to the House of Commons, in the reign of Charles 2nd., had deposed before the House a mass of the most enormous falsehoods, which the House thought proper to circulate through the country, and sell for the benefit of their informer. Was that the mode in which their Lordships would proceed if called upon to legislate with respect to the right of the heir apparent? Certainly the very contrary mode would be that which their Lordships would adopt. It had even been held out, by way of an argumentum ad hominem, and an argumentum ad absentem too, that the House might proceed against the judges themselves. Would they do it without hearing them—without giving them an opportunity of rebutting the slanders thrown out against them? He would tell them in what way those inquiries ought to be conducted, because he had had experience of them. It happened to to him, when a Member of the House of Commons, to bring the conduct of a certain judge in the principality of Wales under its notice, unwisely, perhaps, with the view of inquiring whether he were fit to be continued in his high office. He 574 had not sought to prejudice that judge's cause by ex parte statements, but had called upon him for his defence. He had communicated to him the nature of the charge, had appointed a counsel and attornies to cross-examine the witnesses against him, and had allowed him to bring fresh witnesses of his own, and then he had left it to the House to proceed and say, whether or not it was a case for their interference. That was the way, he took the liberty of saying, in which not only every judge, but every public officer, against whom an accusation was brought, ought to be treated by the House of Commons. But if they wished to take the course of abusing the privilege of indiscriminate sale, he saw nothing but mischief likely to arise from it. As an example of this, he would refer to a document which he was sorry to trouble and disgust their Lordships by even alluding to. A petition was presented in the year 1836, after the resolution for the sale of papers was passed, against the present Lord Chief Justice of the Common Pleas, whom he would not affront by pronouncing a panegyric upon, one of the most honourable and excellent men who ever lived, denouncing him as the most fraudulent, corrupt, and malignant offender, that ever disgraced the bench. The course he had pointed out was that which he had no doubt which their Lordships would think ought to be pursued; but what other result but mischief could be expected to flow from indiscriminate publication and sale? Statements made in such petitions as that to which he had referred, could do no harm if they were investigated, but, being made upon no responsibility, they might, when circulated through the country, prejudice the characters of unoffending persons with those who were ignorant of the facts. The case of Stockdale was itself a remarkable instance of the mischief of indiscriminate sale. The inspectors of prisons found a book in Newgate which they considered to be obscene and immoral, and they stated their opinion in their report to the Secretary of State. The Court of Aldermen were affronted, and answered that it was not an improper book, but a scientific work. This was too bold. They might have asked to see the book, or the inspectors might have said, that though a scientific book, it was yet improper for a prison, and, therefore, that the objection of the court was groundless. 575 But they said, instead of that, "We will prove the infamy of the book by proving the infamy of the man;" and that man, it must be observed, might have been one of their Lordships, or one of the most respectable persons in the Queen's dominions. It might have been a young man rising into notice, who might have been utterly ruined and undone, his reputation blasted, and prospects of advancement cut off on account of this very book. In the case of Polack, that gentleman came before the committee of the House of Commons on New Zealand, and gave an opinion as to what was the course best to be taken with respect to that island. Another person came before the committee and said, that he was not to be believed on his oath, and thus, when a witness came before a committee of the House, his character was made public property for every enemy to fire at, and the slander was circulated throughout the country at the charge of three halfpence. With regard to the accuracy of the judgment which had been delivered., he was satisfied that never was there a court more willing to acknowledge any errors they had committed, or more willing to bow with the utmost deference to the superior authority of another court. It had been said, that in coming before the court, the parties were only binding themselves for a time to a species of arbitration. That was not a just view of arbitration, for the office of arbitration might be declined, but the judges were bound to decide the cause according to the best of their own judgment. He had seen lately that a return had been ordered of the number of judgments in the Court of Queen's Bench taken to a court of error, and the number of rehearsals, he supposed, for the purpose of showing that the Court of Queen's Bench was a very fallible body—a proposition which its members were at not all disposed to contradict. That return showed, that during five years twenty cases had been removed by writ of error, and in ten of these the judgment had been reversed. This was not, perhaps, a thing to be much wondered at, when it was considered that not less than 6,000 judgments were given in that court in the course of five years. He thought, however, it was clearly proved, seeing that half the judgments were reversed, that the courts of error were not particularly reluctant to examine or reverse the judgments of the Queen's Bench. 576 He asked, then, if the judgment in the case of Stockdale was complained of, why was it not taken there? That judgment was treated by some persons as if it were something altogether absurd. Would ten judges in the Court of Exchequer Chamber have hesitated to examine that judgment, and if erroneous, to reverse it? Would their Lordships have hesitated to do, as if it had been brought from the Exchequer Chamber to that House? And if the judgment of the Queen's Bench had been in favour of Hansard, would the House of Commons have prevented all appeal, either to the Exchequer Chamber or to the House of Lords? They had not done so in the Burdett case. Their Lordships would certainly not have been unwilling to establish their own privilege, which was said to be at stake with that of the House of Commons. Why, that decision was unquestioned, and had thereby become law. He must, with all deference, express his opinion as a Member of Parliament, that many things had been most unfortunately advised in the course of these proceedings, because in the second action no counsel appeared for the defendant, so that not only had there been no truth pleaded, but there was no one to make any statement for the defendant in mitigation. On the third occasion, neither privilege was pleaded, nor truth, and the consequence was, that the damages were increased from 100l. to 600l. He did not wish to speak on the subject of the imprisonment of Stockdale, because he had had recourse to law, or of the attorney, because in the exercise of his profession he had undertaken the defence of his client, or of the attorney's clerk, because he had executed the orders of his master, but he did wish to say one word with respect to the sheriff, because it did seem to him if they were called upon to give, even by implication, the smallest degree of confirmation to what had been done to this functionary, that it was utterly impossible to receive this bill at all. The sheriff had received the money of the defendant, but he was bound to pay the money over to the plaintiff, and was in fact as much the plaintiff's trustee as any of their Lordships' bailiffs who had received the rents of his employer's estate. He would have been punished by the court if he had declined to pay over the money which was levied by its authority, and the court again had no right to decline to attach, him. The 577 sheriff was desirous of complying with the wish of the House of Commons and restoring the money to the defendant, but it became the duty of the court to see that the money paid to the plaintiff as his due, and for obeying the order of the court the sheriff had been forced to undergo greater penalty than, he believed, the majority of convicted felons in this country endured. He confessed that he thought the state in which the case at present stood rendered it highly reasonable and proper that the legislature should interfere. It was most fit that they should consider whether the interposition of the legislature should not be resorted to to prevent more actions being brought, or even to stop those already commenced. As to the grant of compensation to the plaintiff, it would take much argument of counsel to persuade him that 700l. was not full compensation for all the injury that had been suffered. The claim for protection to printed papers was now made chiefly on the ground that, in point of fact, publicity was already given to such documents. Debates were published on the morning after they took place, and the proceedings before committees were communicated to the world in the same way; and in all cases half publicity was mischievous. Looking at the necessity of the case, it was infinitely better that publicity should be given to such proceedings, guarding against its abuse. It was impossible for that House, or for any other court, to inquire as to the exercise of discretion in publication by the House of Commons, but he considered that the House of Commons had come under an engagement to look strictly after the exercise of this power. The committee of 1837, on the publication of printed papers, said—To prescribe any positive rule upon such a subject is manifestly impossible. The invariable adherence to such a rule might protect public delinquents from a disclosure of their misconduct, or prevent the notoriety of facts important to the ends for which inquiry was instituted. It appears, however, to your committee (and they think that the practical experience of Members will support the conclusion to which they have come), that it would not be difficult, on a mature consideration of each case wherein the exercise of a discretion may be called for, so to apply it, in the great majority of instances, as completely to reconcile all proper regard for the character and feelings of individuals with the faithful and effectual discharge of public functions. The more essential the privilege, the more urgent the necessity 578 for an exclusive and unfettered authority in deciding upon the exercise and the limits of it; the more important and the more becoming is it to take as much precaution as possible against the infliction of individual injury or unnecessary pain to private feelings.He thought that when the House of Commons came to ask the assistance of the House of Lords in passing a bill to make such publications as he had referred to legal, it was in effect an undertaking on the part of the House of Commons that they would exercise a discretion in every such case of publication, and that they would take care that no pain should be inflicted or injury done to individuals, or at any rate, if any injury were inflicted, that the cases in which such an injury was done should bear so small a proportion to the general number of cases, that no objection could be made to the privilege in general. On the grounds which he had stated, therefore, he approved of this bill; but at the same time he must say that he entertained strong objections to some parts of the machinery of the measure. Why, he would ask, should the officer of the House of Commons come to the officer of the Court of Queen's Bench, and stop the proceedings which had been commenced in that or any other court by the production of a certificate from the Speaker of the House? He thought, if they might judge from what was said elsewhere, that the object was to insult the courts of law, as if they were not fit to be trusted with any powers which might be brought to bear against the House of Commons. Now, he asked their Lordships whether the judicial authorities deserved such a stigma? He thought it a most unseemly thing that, as provided by the bill, they were not to know what was going forward, and that they should find on a sudden all their proceedings paralyzed by something which had not come to their knowledge. He thought that when the bill was in committee, something might be done to provide against this defect, and that instead of a certificate it might be found practicable to introduce some provision by which all proceedings of the House of Commons should bear the stamp of authenticity at once, so that the proceedings in any action calling them in question might be stopped at any stage. He trusted that their Lordships would not assent to any thing which would imply a censure on the Court of 579 Queen's Bench. Then there was one part of the bill to which he thought it right to say that he should find it impossible to give his assent, and that was the clause for staying the action brought by Mr. Howard against the officers of the House of Commons. He could not say what wrong had been done to Mr. Howard, and he knew that some excess had been committed, which might come into question on a new assignment, and therefore he could no more see why Mr. Howard should be prevented from suing and endeavouring to obtain a remedy, than why any man's freehold should be taken away by a vote of the House of Commons. He must also say, that he thought that this bill ought to have gone further, and that it ought to have protected every individual who published a report or proceedings in consequence of the authority for publication given by the House of Commons. He thought that every newspaper publisher and every bookseller became for this purpose the officer of the House, and he could not conceive what objection there could be in point of principle, to the extension of the protection to these individuals. If, for instance, there were extracts published, from a report published under the authority of the House of Commons, he should say that there could be no objection to leaving it to a jury to say whether the extracts w ere made bonâ fide or not, and if the publication was clearly not malicious, then the jury might be directed to find a verdict for the defendant. There was another point which he could not help mentioning, and it was this. It struck him that it would be a most important improvement in the bill, if, whenever the plaintiff in a case of libel had failed on account of a justification pleaded and established, it were provided that he should never have the right to proceed against any other individual for the same libel, but that the defence established in the one case should be a bar to all other actions. He had now troubled their Lordships at some length, and in a manner which he was sure was unworthy this great subject, but he had thought it his duty, in the best way he could to bring before their Lordships the considerations which had weighed with him in dealing with this question, and he trusted that he had said enough to prove that the Court of Queen's Bench had done nothing which deserved to be 580 visited with any kind of stigma; and he could not help thinking, that, however their Lordships might exercise the highest of all their attributes, that of wise legislation, those attributes would be appealed to in vain, if privilege were allowed to supersede the law, or if the laws, when made, were not to be carried into execution by fearless and independent judges.
§ Viscount Melbourne
felt great satisfaction in finding, from the general tone of the debate, that no objection was entertained to the second reading of the bill, and he trusted that the same disposition would prevail throughout its subsequent stages, and that their Lordships would be able to carry the bill, with whatever amendments might be considered necessary, into a law. He expressed this satisfaction, because, whatever might be their Lordships' opinion on the proceedings and transactions which had led to the present state of things, it was impossible not to feel that the collision which had taken place between the House of Commons and the Court of Queen's Bench, had been followed by consequences which imperiously called for the interposition of the supreme legislative authority of the state. It appeared to him that such a course was necessary, if they had a regard to the dictates of prudence, and in that point of view he could not help thinking, and he trusted that their Lordships would think with him, that Parliament was imperiously called upon to effect a settlement of this great, this difficult, and, he must add, this most dangerous question. It was in the highest degree natural, and to be expected, that his noble Friend the Lord Chief Justice of the Court of Queen's Bench, who had borne so great a share in these transactions, should take this opportunity of vindicating his own conduct, and that of the Court of Queen's Bench, and of stating the grounds on which he and his brethren pronounced the judgment which had been called in question. He knew how difficult and delicate a thing it was to express any opinion upon the existence of a privilege which had been held, and solemnly held, by the judges of the land, to have no foundation in law. His noble and learned Friend, who was not now present (Lord Brougham) had told their Lordships, in one of the last speeches which he had addressed to them, that it was a matter of the greatest delicacy, and even of im- 581 propriety, to find any fault with a decision pronounced by the judges of the land. His noble and learned Friend carried that proposition a little further, and said that their Lordships had no right to find fault with the part that counsel had taken in the discharge of their duty. At the same time it must be remembered, that the judges of this country might not always be, and had not always been, infallible. They were not infallible in the time of Charles 1st, when the question of ship-money, so important to the liberties of the country, was brought under their consideration, and he believed that when the matter came afterwards to be argued, it was agreed, on all hands, that their judgment was not only constitutionally and theoretically wrong, but also legally erroneous. Now, there was no remedy for that judgment, except in Parliament. He thought that Parliament was perfectly right in reversing that judgment, and in declaring that it ought not to be acted upon; but he had always felt that Parliament went a great way when it made the judges criminally responsible for that judgment, because that must have been on the assumption that the judgment was corrupt, which it was impossible for any man to be convinced that it had been, for no man could penetrate into the motives of another. But not only were the judges liable to error and mistake, but there were occasions when it was absolutely necessary to pronounce an opinion upon their decisions, although no one would be ready to do so, unless it were absolutely necessary that that opinion should be pronounced. Now, notwithstanding all the arguments of his noble and learned Friend, he humbly thought that it was due to the privileges of Parliament, and due especially to the other House of Parliament, to say that in his opinion, this privilege of publication was absolutely necessary for the conduct of the public business of the country, and that it was the privilege of both Houses of Parliament, both upon precedent, and upon the reason of the case. His noble and learned Friend said, that the other House of Parliament claimed to establish the right of indiscriminate sale and entire publication. Now, if the Houses of Parliament could not publish generally and make what was published a legal publication, it was impossible that they should publish for the use of their own Members. He said, that without this 582 privilege it would be impossible to carry on or transact the public business of the country, because, if the reports of committees or other proceedings of either House which might contain libellous matter were published for the use of Members, the utility of the publication would be destroyed, if such a publication would subject the party publishing to a prosecution. He asserted, therefore, that it was perfectly impossible that the business of the country could be transacted unless these powers and privileges were possessed by both Houses of Parliament. His noble and learned Friend had stated many cases which had occurred in former times, such as that of the Kentish petition, in which the privileges of Parliament had been grossly abused. Undoubtedly the privileges of Parliament, as well as the prerogative of the Crown, had been abused; but he trusted, that in future, if this privilege, or any other privilege of Parliament, should be abused, it would lead to the consideration and the curtailment of that privilege. But here there was no allegation of that kind; and no abuses of this privilege had been proved to have taken place recently. He quite agreed with his noble and learned Friend in his opinion upon the steps which had led to the commencement of this business, because he thought that the insertion of Stockdale's name was quite unnecessary, and that it would have been quite sufficient to say that improper books had been introduced into the prison which were of an obscene nature; anything more appeared to him quite superfluous. At the same time he thought that no great injury had been inflicted; he did not speak with respect to the character of the man; a libel was a libel, and every one knew was as much a libel when published of the most profligate individual as of the best and highest character in the country. He knew that the case was so in point of law, but it was not so in point of reason. Before, however, their Lordships took away from Parliament such a privilege, it ought to be shown that Parliament was able to do without the privilege. Now, he had no difficulty whatsoever in holding that this was a necessary privilege for Parliament o possess: and with respect to the manner in which that privilege had been vindicated, unquestionably it was not the fault of the sheriffs that they had been imprisoned, when it came to a question between the 583 Court of Queen's Bench and the House of Commons, which was a new authority, and he owned that he did not think that the sheriff's ought to have taken upon themselves to decide the question of right, or to have done anything out of the ordinary course of business. But at the same time the House of Commons must stand by their privileges. The House of Commons would have been wanting in their duty if they had acted otherwise, and if they had resorted to harsh means for the purpose of enforcing or vindicating their privileges, the fault was not owing to them, but to the unfortunate circumstances of the case. The House of Commons possessed no other means of enforcing their privileges, and it was admitted that those means were inadequate to their object. Mr. Burke had pointed out this long ago, and he told the House they had nothing but a Sergeant-at-Arms with his mace, and that they possessed no powers of an executive character. Still it was necessary, in his opinion, that these privileges should be supported and maintained; but at the same time it was most desirable that the present state of things should be put an end to, and he hoped, therefore, that their Lordships would go into committee, in order that a final remedy might be found for the dangers which it presented.
§ The Duke of Wellington
entirely concurred with the noble Viscount in the hope with which he had concluded, that their Lordships would go into committee upon the bill, in order to frame such a measure as would tend to put an end to the unfortunate situation in which the courts and the House of Commons had been placed for the last two or three months, if not for the last two or three years. He thought, however, that the noble Viscount seemed to entertain some objection to what had been laid down by the noble and learned Lord in respect to the censure which he supposed to remain on the Court of Queen's Bench. Now, in his opinion, one of the principal merits of the bill was, that it cast no censure on the Court of Queen's Bench. The bill left the judgment of the Court of Queen's Bench exactly where it found it, and no censure at all was passed upon any part of the transaction, so far as the Court of Queen's Bench was concerned. In his opinion this measure was founded on the necessity that the two Houses of Parliament should enjoy great and extensive 584 privileges, and that each of them should have the means of judging of and vindicating its own privileges. It was obvious, from what had passed lately, that these means did not exist, and therefore it was that this bill was necessary, and it was for that reason that he was disposed to vote for the second reading of the bill, and to go into committee upon it, in order to render the bill as perfect as possible. But he certainly agreed with what was said by the noble and learned Lord who spoke with so much ability—the Lord Chief Justice of the Queen's Bench—when he stated that the origin of this unfortunate state of affairs was the resolution passed by the House of Commons in the year 1835, that the papers of the House should be printed and sold under the authority of the House. Now, it was true that papers had been printed and published by the authority of the House for many years previous to that period, but they had never been sold before, and he did not think that one instance could be found in which the papers had been sold by the authority of the House. It was true that they had been sold by the officers of the House, but it appeared in evidence that they were not sold by its authority. Now, he must say that he agreed entirely with the noble and learned Lord in thinking that this resolution for the sale of papers by the authority of the House was that which had created and occasioned the difficulty arising out of the recent discussions which had taken place. He likewise agreed with the noble and learned Lord in thinking that neither this bill, nor any proceeding of the House of Commons, nor any intention indicated from any such proceeding, had manifested any disposition in that House to give the public and individuals the security which might be derived from arrangements which they might adopt with respect to the sale of their papers. They did no such thing. The resolution of 1835 remained as it stood originally, and they would commence to-morrow, if this bill should have passed, with these papers, inflicting the same grievances which had already been sustained, without any remedy to the subjects of this country for the injuries which had been occasioned by the publication of these papers. The noble and learned Lord had stated, likewise, what was perfectly true, when he stated that the last report of the commit- 585 tee of the House of Commons upon printed papers had avowed, that not only had no attempt been made to give any security to individuals in respect to the sale, but that all attempts that had been made in order to give security against libels being published in the reports of committees had failed altogether. The report said, it was true, that there were only two instances in which parties had been libelled in these reports; God knew how many more there might be, but they admitted that two cases had occurred. One of these was the case of Stockdale; the other was the case of a libel on a most eminent and respectable individual, the Lord Chief Justice of the Common Pleas. He wished, as indeed everybody wished, that the House of Commons should have the power of printing and publishing its papers. But what he wanted to do was this—that when it proceeded to the sale of them the law should take its course. As to the printing and publishing of papers, he had no objection, until it came to the point of sale. The sale ought not in his opinion, to be made by the authority of the House—it ought to be made by individuals, and they should be responsible for what they sold, as they were previously to their passing of the resolution of 1835; and up to that time it must be admitted that the House of Commons and the House of Lords had the advantage of all their privileges quite as much as they had ever had since. He looked a little further into this question than the mere matter of libelling individuals. He considered all this as the effect of printing and publishing, and the public was interested in its being understood that the House of Commons and the House of Lords were not to be the sellers of libels against individuals. He remembered reading, with great satisfaction, the history of a great case which was pleaded and argued at considerable length some years ago in this country— he meant the case of "The King v. Peltier," in the Court of King's Bench. That was the case of an action brought against an obscure individual like Peltier for a libel which he had published upon the Sovereign of a neighbouring country, with whom we were then in a state of peace and amity. Now, he asked their Lordships whether, supposing in the course of the late Polish revolution, the libels, some of of which they had seen printed in this 586 country, and others of which they had heard spoken in the other, and he believed in that House of Parliament, reviling, in the strongest terms, the Sovereign of Russia, had been stated in the petitions or in the proceedings of the House of Commons, and had been printed, published, and sold by its authority—he asked their Lordships whether such a proceeding would not have been calculated to disturb the peace of this country and of the world at large. [Hear!] In short he asked their Lordships whether it was desirable, that there should be an opportunity of publishing and selling, on the part of the two Houses of Parliament, libels against the Sovereigns of all foreign countries in Europe? He was one of those who considered that the greatest political interest of this country was to remain at peace and amity with all the nations of the world. He was for avoiding even the cause of war, and of giving offence to anyone, and of seeking a quarrel either by abuse or by that description of language which was found in these libels. He was against injuring the feelings of any Sovereign against whom individuals had taken offence, and against whom they sought to publish libels under the sanction of Parliament. Let them state what they pleased in their private capacity, and let them be answerable for it individually, as Peltier was. What he wanted was that Parliament should not, by the combined privilege of publication and sale, run the risk of involving the country in the consequences of a discussion on such subjects, and in all the mischiefs and inconveniencies which might arise from it. Under these circumstances he hoped that in the committee on the bill, some means would be found of leaving the publication by sale in the state in which it was under the common law previously to the resolution of 1835. The noble and learned Lord, in the course of what he had said that evening, had suggested a mode—for the noble and learned Lord's mind went with his on this subject without any communication having taken place between them—which would go to a total alteration of the law of libel. It might be proper that that law should be altered. He gave no opinion on that point at present. What he insisted on was this, that this House and the other House of Parliament should not become libellers by the authorized sale of their papers. Let either House of Parliament 587 print or publish in their votes, or in their reports, what they pleased, but let neither of them proceed to sell them. Let us leave it to individuals to sell them, and let those who profit by the sale, be responsible for the consequences. He should certainly vote for the second reading of the bill, and would go into committee upon it, with a view of amending it.
§ Lord Wynford
was understood to concur in all that had fallen from the Duke of Wellington, as to the sale of Parliamentary papers. He expressed his concurrence in the first clause of the bill, but he must withhold it from the second, as it was an ex post facto law. He hoped and trusted that it would not pass. He also justified the conduct of the sheriffs, who were bound to look to the Queen's writ, and not to the resolutions of the House of Commons.
regretted that the course now adopted at the eleventh hour of settling this question by legislation had not been adopted at the first hour during the last Session. He was far from objecting to the retrospective part of this measure —he was only sorry that it did not redress the past; for the law had been wrested into an engine of plunder by an individual who deserved no sympathy. He thought that the main fault of all these transactions ought to rest in a quarter which had not yet been attacked—he meant the juries who had assessed the damages. To give such damages as 700l. in such a case was utterly indefensible in the case of a person like Mr. Stockdale. He looked upon their verdict as a verdict given from political feeling against the House of Commons. From that verdict had arisen much of the inconvenience now felt. He concluded by expressing a hope that their Lordships would pass this bill without curtailing any of its material enactments,
The Marquess of Bute
agreed with the noble Duke, and the noble and learned Lord who had spoken last but one, that further provisions were necessary to give to the subjects of this realm that protection to which they were entitled, and which was more particularly called for by the manner in which the privileges of Parliament had been exercised during the last few years, He did not wish that remark to attach exclusively to the House of Commons; but this he must say, that the House of Lords had exercised their privileges less annoyingly to their fellow 588 subjects than the House of Commons. No one could take up the volumes of evidence printed by the two Houses of Parliament without seeing that the House of Lords was much more cautious than the House of Commons in striking out the names of parties who were likely to be injured by the publication of their inquiries. What had rendered the House of Commons so bold of late years it was not for him to say; but the matter was most glaring, and what rendered it most offensive was, that the name of the Member asking the obnoxious questions was now invariably printed. When he saw hon. Members calling before them parties filling high judicial stations, and compelling them to answer questions which must injure individuals, he must confess that he thought that no privilege of Parliament ought to shelter those who put such questions. He thought that they ought to be liable to actions in a court of law.
§ The Lord Chancellor
, in reply, read an extract from the report of the committee on printed papers, showing that the papers of the House of Commons had been regularly sold from the year 1690 to the year 1777. It appeared from a statement of Mr. Nicholl, that from the year 1729 to the year 1777, his predecessor, Mr. Bowyer, and himself, had, after deducting the expenses, accounted to the Speaker for the profits which they derived from the sale of them; that up to the year 1772 the profits amounted to a sum of 240l. a year on the average, but that from the year 1772 to the year 1779 the sale gradually diminished in consequence of the proceedings of the House being regularly detailed in the newspapers, so that at last, instead of producing a profit, it was accompanied by a loss. Whereupon the Speaker transferred their account to the Treasury, by whom it was paid. This established the fact, that up to the year 1779 the practice of selling the papers published by the House of Commons existed. There could, therefore, be no doubt that the papers printed by the authority of the House of Commons were sold with its full knowledge. His noble and learned Friend had spoken of the present sale of papers by the House of Commons as an indiscriminate selling. Now this was not the fact. There were two committees to superintend the printing of papers before their sale. No paper could either be printed or sold without the consent of these two committees 589 being previously obtained.—Bill read a second time.