The Earl of Shaftesbury
brought up the report on the Printed Papers' Bill.
§ Lord Denman
said, that this bill had been brought up from the House of Commons to remedy a very pressing inconvenience, namely, the unreasonable multiplication of actions of a frivolous nature. He confessed that he could not add any thing to the very able argument which had yesterday been delivered at the bar of their Lordships' House. All that he now wished to do was, to submit to the consideration of the House some amendments calculated, as he believed, more fully and completely to effect the objects which the promoters of the measure had in view. To the early part of the clause for putting a stop to the actions now pending, he did not mean to object. This subject being under discussion, it was quite a matter of course that the House of Commons should consider the most convenient course, to prevent the consequences of actions which might be brought in future, and, therefore they declared, that it was "essential to the due and effectual exercise and discharge of the functions and duties of Parliament, and to the promotion of wise legislation, that no obstructions or impediments should exist to the publication of such of the reports, papers, votes, or proceedings of either House of Parliament, as such House of Parliament may deem fit or necessary to be published; and, whereas, obstructions or impediments to such publication have arisen and hereafter may arise, by means of civil or criminal proceedings being taken against persons employed by, or acting under, the authority of the Houses of Parliament, by reason and for remedy whereof, it is expedient that more speedy protection should be afforded to all persons acting under the authority aforesaid, and that all such proceedings, civil or criminal, should summarily be put an end to in the manner mentioned." The bill still left it doubtful whether the law, as declared by the Court of Queen's Bench, was, in the judgment of the House of Commons, correct; and, therefore, it was necessary to supply a new law to remedy the defect that existed. The learned counsel who addressed their Lordships' at the bar on the previous night, took a contrary view of the decision of the Court of Queen's Bench, from that which was expressed by his noble and learned Friend on the woolsack, when he introduced the bill to the attention of their Lordships, for his noble and learned 968 Friend went upon the assumption that the decision was correct. If he were disposed to go into that matter, he should think that the argument of the learned counsel at the bar, was more in accordance with the nature of the bill itself, than what took place when the bill was introduced. He thought it unworthy of their Lordships and of himself, to go into an inquiry concerning the motives in which the bill originated. The question was this, was there a case for an act of Parliament at all, and if there was, did this act contain a reasonable and proper remedy for the inconvenience complained of? A great ferment had arisen upon this subject, and considerable embarrassment was felt, which was likely to last for some time, and his only object was to put a stop to that state of things. But when he came to look at the means by which that object was sought to be carried into effect, he must own that he saw much to complain of in every point of view, for it certainly did introduce a mode of paralyzing the proceedings of a court of justice through the medium of a communication between other parties, to which, he believed their Lordships would agree with him, they ought not to be exposed. If the courts had done anything wrong, and if their Lordships were sitting as a legislative body to pronounce on the validity of a judgment of the Court of Queen's Bench, and to declare their opinion that the decision of that court was wrong and should therefore be set aside, there would be some ground for introducing these clauses. But he could not think that their Lordships would feel themselves authorized to take that view of the matter; and he, for one, was not at all disposed to submit to the proposition that the Court of Queen's Bench should be reduced to an absolute nullity by a communication between the officers of the House of Commons and the court It appeared to him, that instead of that being the course, the only proper proceeding would be, that the court itself should be informed of that which had been done by the Houses of Parliament, and that the court should receive credit for doing its duty and enforcing the law, and instantly seeing that, since this law for giving publicity to proceedings of such a nature was passed, that the publications were properly made under the authority and power of the act. He should, therefore, take the liberty to propose that instead of a certificate in every particular case on the part of the Speaker, or of the Parliament, to certify that something was done 969 and published by his or their authority, the publications themselves should bear on the face of them the authority by which they were issued, just as an Act of Parliament printed by the King's printer appears authorized on the face of it; so that it would be known as the publication of the authorized printer of the House of Commons, being signed by the Speaker, or any other authority properly appointed. He apprehended that would be the proper mode to relieve the case of a great deal of the difficulty which at present encumbered it. Then, again, it was required that the particular thing complained of should be certified as published by the authority of the House of Commons. But that might be a garbled abstract, for there was a great difference between a part and the whole, and a part might be set out and published for malicious purposes. That required correction. Supposing that the plan were adopted of having a affidavit to confirm the authority of the publication what protection was there against forgery? The court would have no means of judging of the authenticity, and the party sued for a libel might put in an affidavit that the certificate of the authority for the publication was the certificate of the proper officer, while on the other hand, the other party might produce a counter-affidavit. The court would then be called upon to determine, on the one side or the other, which party was right. But, according to the bill as it now stood, on the mere production of the certificate and an affidavit verifying the certificate, the court was to put an end to all further proceedings. Again, there was no provision made on behalf of the plaintiff in any action; so that the case might proceed upon a process which had become illegal by some proceeding of an inferior officer here, and an inferior officer there, of which the court might be kept in ignorance. It was true that by the second clause the plaintiff was to have forty-eight hours' notice of the delivery of the certificate; but if that were not done, no penalty or consequence would follow, and the defendant might go on without giving notice to the suffering plaintiff. The question of the service of the notice might be raised, and each party put in conflicting evidence: and who was to decide but the court itself? It was clear that the bill itself would be of little or no avail unless the courts of law were to see it, if passed into an act, properly carried into effect. Indeed he could 970 hardly think that the House of Common contemplated having an Act of Parliament' and yet would oust the courts of law from carrying it into effect. He thought it would be better for the House of Commons to keep the matter of privilege in their own hands, and to say, "We do not want an Act of Parliament at all; we will send for individuals whenever we think they have violated our privileges, and deal with them ourselves." If the courts of justice were not to be trusted because they might be suspected of prejudice, it would be better for the Commons to keep to that course. But there were modes of evading this measure. An action brought for libel was declared to be null and void by the bill; but suppose it went on—suppose the party proceeded with his action, notwithstanding anything which had taken place in his absence—would it he superseded? The meaning was, that the action should be considered as good for nothing. But who was to consider of that? Who was to form a judgment upon that? The courts of justice, undoubtedly Therefore, if they had a law, they must give power to the courts to enforce it. It appeared to him also, that when any authenticated report was published, and a copy was made, the copy should be entitled to the same protection as the original. In fact, original reports were seldom read by the public until they were copied into the newspapers, and it was chiefly by the circulation of the newspapers that they obtained publicity. It struck him, therefore, that their Lordships would be really giving effect to the bill by saying that copies of authenticated reports published in newspapers should be protected equally with the original reports. It often happened that the whole report in its original form was extremely uninteresting to the public, and therefore it was found desirable to extract the most interesting passages; and if that were done, his suggestion was, that it should be a matter on which no summary proceeding should take place, because it would be one for grave inquiry. If it could be shown that the extracts had been made for the purpose of injuring an individual, the sufferer ought to be protected and redressed. But he should propose that when the jury should find in such cases that the extracts were made and published without malice, the verdict should be for the defendant. In the case of authenticated reports and copies of authenticated reports, he proposed that the party bringing his action should not recover 971 costs, because he ought to know that such an act had been passed.
§ The Lord Chancellor
apprehended that this was a subject, above all others, upon which their Lordships would be most anxious to agree with the other House of Parliament, at least without any material alteration. Of course they would not give their assent to anything that was not worthy of it. But the object of this bill was to put an end to the unfortunate contest between the other House and the Court of Queen's Bench, and therefore, it was a bill upon which they should be disposed to look favourably, and in which they should make no alterations but such as were unavoidable; because, after what had happened, any important alterations might be received as being of doubtful interpretation. The amendments of his noble and learned Friend would, if adopted, lead to consequences which he would regret. He would call their Lordships' attention to one part of the alterations proposed in the first section of the bill. They were aware that this contest had arisen from an action brought by an individual named Stockdale, upon which he recovered 100l. damages, after a defence; he then brought a second action upon the same alleged libel, which action was not defended, and he recovered 600l. damages; he then brought a third action on the same publication, which was the action now pending. The third action Was that with which the bill professed to deal. That action was brought after repeated warnings from the House of Commons that they considered, if he proceeded to bring that action, he would act in violation of their privileges. Their Lordships were aware that two persons besides Stockdale—namely, his attorney and the clerk to his attorney, were now in custody for acting contrary to the expressed orders of the House of Commons. The object of this bill was to stay such actions in future, and to prevent such contests being carried on. That being so, it was scarcely possible that the House of Commons would Consent to the amendments of his noble and learned Friend. The House of Commons was jealous above all things of any interference with its privileges. But the effect of the amendment of his noble and learned Friend would be, that the officer of the House of Commons, acting under the obedience and orders of the House, could not be relieved from an action brought against him without applying to a court of law, which was exactly what the House of 972 Commons most deprecated. His noble and learned Friend proposed that costs in such actions should be disposed of upon such terms as the court should think just and reasonable. But look at the present case. What hardship had Mr. Stockdale suffered? He had thought proper, after recovering 700l., to bring a third action. Was he a party who ought to have costs? Parties had been permitted to receive costs because they had taken advantage of the law as it stood. The act relating to horse-racing, which their Lordships had recently passed, was an illustration of that point. But in this case the party had commenced proceedings in violation of the orders of the House, to which orders it was the object of the bill to give effect. It would astonish those acquainted with the practice of courts of equity to hear the rule laid down, that where a party had acted in defiance of an injunction, he should have any claim for costs. To be sure his noble and learned Friend would say that the House of Commons had no right to issue an injunction. But that was the very question, and their Lordships were called on to put an end to that question, and to prevent the inconveniences arising out of the dispute upon it. So far from a party in such a case as he had mentioned being entitled to costs, he would be sent to the Fleet, and never suffered to depart until he had paid the costs himself. He trusted that their Lordships would see, that the amendments would defeat the object of the bill, and, if passed, compel the House of Commons to resort to means for the vindication of their privileges, and therefore, he hoped that they would not allow the bill to be altered.
§ Lord Wynford
considered that his noble and learned Friend on the Woolsack was mistaken in the views which he entertained upon the effect of this bill as to costs. He should have liked the bill better if it had given costs to the plaintiffs. When actions were brought against the clergy for non-residence, they had been all stopped, but upon payment of costs to the plaintiffs. In the bill also relating to joint-stock banks he had himself introduced a clause, which their Lordships had agreed to, providing that costs should be paid to the plaintiffs as between attorney and client. He should therefore, have liked the bill better if it had contained a provision to that effect. He must say that he entirely disagreed from what his noble and learned Friend said about the propriety of bringing actions. In the great case of "Ashby v. White," 973 that House came to a solemn determination and that determination had never been reversed, and therefore it was still the law of Parliament, that no man was guilty of a contempt of either House of Parliament for any action brought for an injury received by him from any act done by any officer of the House. He could not help thinking that no party could be committed for contempt by bringing an action against an officer of the House of Commons. Again, in the great case of "Burdett v. Abbott," the House of Commons, who were then very sensitive about their privileges, as they had been ever since, vindicated their privileges in a manly and constitutional way, and never thought of committing Sir F. Burdett for a contempt in bringing an action against the Speaker. The House of Commons had no privilege which was not recognized by the law of the land, as declared by some court of justice. The court must inquire whether the privilege was a reasonable one, and that was a duty which the judges owed to the country, which considered them the greatest patriots for performing it as it had been performed by his noble and learned Friend opposite, and his learned brethren of the Court of Queen's Bench.
§ Lord Abinger
had originally thought, that it would be the safest course for him, situated as he was, to abstain from saying anything upon the merits of the general question of privilege, so long as there was a possibility of the question being brought before a court of error, of which he was a member, and he still adhered to that opinion. With respect to this bill, it was a bill of peace, and he thought it would be wise for his noble and learned Friend to accept it. He should confine himself now to the mere question of the amendment. He had been unable to study his noble and learned Friend's amendment, but it struck him that his noble and learned Friend on the Woolsack was right in opposing the proposition that such costs should be given as a judge should deem just and reasonable, and he owned he thought that it was not desirable that the House of Commons should be exposed to the humiliation of going before a judge or officer of the court in order to get the proceedings stayed on terms discretionary with the judge to impose as to costs. He thought it better that some clause should be introduced by which the action should be stayed altogether. If the bill were drawn so as to make the action now pending a nullity, there would be no 974 reason for the introduction of a provision for staying the action, and allowing a judge to award costs at his discretion. Then if it applied to any action prospectively, it would be a humiliation to the House of Commons to be called upon to receive the opinion of any officer or judge as to costs. Then as to the mode of proceeding. The most useful method would be to adopt the machinery which his noble and learned Friend had suggested. He would have proposed a single clause, which would be to this effect:—In all actions or prosecutions for any libel when it was made to appear that the publication complained of had been made by order of either House of Parliament, the defendant should be at liberty to stay the whole proceedings, and the certificate of the Speaker should be evidence of the fact. It would then be imperative on the court to stay the proceedings.
§ Lord Denman
thought, that it would be perceived that his difficulty was occasioned by mixing up the plaintiff's in the pending action and in other actions. He thought, that Mr. Stockdale should under no circumstances whatever receive costs, but he was not sure that actions might not have been brought by other parties. He would not, however, admit the principle contended for by his noble and learned Friend on the Woolsack, that Mr. Stockdale was bound not to proceed after he had received notice from the House of Commons. He would not permit it to be supposed that any one of the Queen's subjects was to be restrained by an order from the House of Commons, or from the House of Lords, not to proceed with an action brought to enforce a right acknowledged by the law. He did not acquiesce in any such proposition, which rather controverted the notion which seemed to prevail the other day, that the bill assumed the judgment of the Court of Queen's Bench to be correct. With regard to Stockdale's costs, if they could be separated from the costs of other parties, he should have no objection to this course.
§ The Lord Chancellor
remarked that, there was no chance of there being any other actions than that of Stockdale. The defendant therefore, ought to be allowed in the bill to stay the proceedings against him on the production of the Speaker's certificate. What the bill now proposed was, that the defendant—namely, the officer of the House—should bring the certificate of the Speaker, that the paper containing the alleged libel was a paper printed 975 by order of the House, and upon that the action was to be stayed. As to what his noble and learned Friend, the Lord Chief Justice had said about the judgment of the Court of Queen's Bench, there could be nothing in the bill which affected that judgment, and, therefore, he did not think it was necessary to take the bill back to the House of Commons for the purpose of making the proposed amendment.
§ Lord Langdale
said, that in the consideration of the question now before the House, it was necessary to bear constantly in mind what the object of the bill was, and what were the means by which that object could be effected. The object was to put an end to those proceedings, which by lessening public confidence in the courts of justice, had so justly created alarm throughout the country. No one could regret more than he did the proceedings which had taken place, and he must take the liberty of saying that some of the doctrines which had been propounded and maintained during the controversy by persons entitled to great consideration, appears to him to be extremely dangerous, and to be inconsistent with the principles and practice of a free and lawful constitution of government. He quite agreed with his noble and learned Friend, the Lord Chief Baron, that this was not a proper time to give an opinion upon the general question which had been agitated, but he must be allowed to state, that under all the circumstances which had occurred, considering that the decision of the Court of Queen's Bench was pronounced upon deliberation after a long and very learned and able argument, that all the judges had been unanimous, and that a writ of error might have been, but was not, brought by those who conceived themselves to be aggrieved—it did appear to him that there was at least a strong presumption that the judgement was right; and it was to him a principal inducement to vote for the bill, that it proceeded on an assumption that the judgement might be right. In that respect he entirely concurred with the noble Duke. In looking to the means by which the object in view might be attained, he conceived that it was necessary that the bill should be founded on a just principle—that its provisions should be sufficient to secure the object intended to be obtained, and that it should be acceptable to the House of Commons, but he did not consider it to be necessary that such a bill should be a perfect measure, or should provide for all the 976 contingencies which ought to be contemplated on the occasion of making such a law. The circumstances were such at this particular time, that for the sake of attaining the immediate object, and of showing a considerate and conciliating spirit towards the House of Commons, it appeared to him that it was expedient to consent to a law less perfect than might be contrived; and to trust that hereafter, when the present excitement had passed away, and mens' minds were more free from passion, the House of Commons would concur with the House of Lords in the preparation of a better law. He confessed that there were many things in the bill of which he could not approve, and there were some important omissions; but as the bill appeared to him to be founded on a justifiable principle—as the enactments seemed sufficient to answer the immediate purpose intended—and as the Commons had passed it, he was induced to give his support to it. He should even wish to pass it as it was, adding only a common clause providing for its being repealed or altered during the present Session, and he thought that after it had passed, another bill should be introduced for the purpose of making the law upon the subject as clear and perfect as might be.
§ Lord Denman
said, that if personal grounds alone were concerned, he would offer no objection to the clause which went to stop the actions already brought. But, as the bill now stood, he must offer to it his most strenuous opposition. He thought, that to stop the action which had been brought by Mr. Howard, not for a publication by order of the House, but for an excess of authority in the officers of the sergeant-at-arms, for remaining in the house beyond the time which they had a right to stay, and conducting themselves, in other respects, in an objectionable way, would be a proceeding of the most gross injustice, and the worst example. Considering it to be his duty to use every means in his power to prevent the first clause from passing in its present shape, the noble and learned Lord read a clause, which he proposed to insert in the beginning of the bill, to the effect that "all actions against printers and publishers for libels contained in publications printed by order of the House of Commons shall be, and the same are, hereby stayed."
The Earl of Winchilsea
felt deeply indebted to the noble and learned Lord for the stand he had made for vindicating the character of the Court of Queen's Bench, 977 He cordially supported the amendments proposed by the noble Lord, and his only wish was, that they had gone further.
§ The Lord Chancellor
thought it would meet the object the noble and learned Lord had in view, if the first clause, as to the printing, was left as it now stood, and the provision proposed by the noble Lord should be inserted in the second clause. He alluded to the producing to the court the certificate of the Speaker of either House of Parliament, that the paper had been printed under his authority. That would relieve all objections, and preserve the machinery of the first clause.
said, that the bill had been sent up from the House of Commons to put an end to the differences, which every one regretted, as to the existence of the privileges of the House; and the amendment of his noble and learned Friend, confining the benefits to those parties who did not sell, would in effect be to confine those benefits to the House of Lords alone, unless on this condition, that the House of Commons would rescind one of its resolutions. For himself, he had doubts about the propriety of a sale of the Parliamentary papers; but if he were asked to give his reason for those doubts, he confessed that he would scarcely be able to furnish any; certain, however, it was, that if he were one of the public, he would feel satisfied with the sale; and it was more convenient for the public that they should be able to purchase a paper for a small price rather than have to ask the favour of a copy from some Member of Parliament, for some persons might not know a member, and others might not like to be under any obligation. Besides, the evil was in the publication, not in the sale; and he was somewhat surprised at the course taken by his noble and learned Friend to limit the benefits to papers not sold, if he wished to restrict the publication; for the effect of the sale had been to lessen the number of papers that were actually put into circulation. When, however, they were about to give themselves this privilege of publication that did not already exist, they ought to take measures to prevent any abuse of their privilege. This they might do without consulting and without interfering with the House of Commons, What had they done with respect 978 to the regulations of their private committees? They had been told that abuses existed in the committees of private bills, not so much in that House as in the House of Commons. What did they do? They appointed a committee, and they adopted regulations that entirely prevented any abuses in their own House. The House of Commons saw this, and the House of Commons followed their example. Let them act now in the same manner with respect to this measure; let them adopt restrictions that were right, and they would be followed, without any dictation on their part, by the House of Commons. He would pass this measure as nearly as possible in the state in which it was sent up by the House of Commons; but yet let them, when they gave themselves all the protection of this bill, prevent to the utmost of their power all abuses; and, especially, they ought not to do that which was offensive to the House of Commons, and which would be the more offensive because it would relate to a money vote, asking them to rescind one of their resolutions. He trusted, then, that their Lordships would not acquiesce in the amendment of his noble and learned Friend; for if so, it would be better to reject the bill altogether, and to leave untouched the collision between the House of Commons and the Courts of Law, than to add to it a collision between that House and the House of Commons.
§ The Duke of Wellington
wished their Lordships would judge for themselves, and adopt either the recommendation which he would propose, or the proposition which had first been made by the noble Lord. He thought that if their Lordships followed the advice of the noble Lord, they would commit a great error. What he would propose was, that they should give protection as well to the House of Commons as to that House, and place them on precisely the same grounds, by giving indemnity to all persons printing and publishing any thing ordered by either House. But in this bill there was something else that was proposed, and which the noble Lord had passed by. It had been proposed, that protection should be given not only to papers printed by order of either of the Houses of Parliament, but to papers that, having been so printed, were sold; and that was the very point which was the origin of all the mischief. In 1835, a new practice had been introduced into the House of Commons (for he called it a new practice, although anciently it might have existed,) 979 and it was this new practice of sale that had been the cause of the mischief. It was avowed, in a report of the House of Commons, that no measures had been taken to prevent the sale, and that no measures could be taken to prevent the inconvenience. A grave case had been stated lately: it was lout two days ago that complaint had been made of the publication of a petition reflecting on a magistrate of the county of Herts; and if papers were to be sold, who could prevent such complaints, however desirable such a prevention might be. When such inconveniences as these were brought before them, they should do all that they could to apply a remedy. It was their duty to make the bill as perfect as possible, and he thought they should not permit the other House of Parliament to have authority to make sale of libels against her Majesty's subjects, and to become, in fact, the only authorized libellers in the country. This resolution of the sale of their publications has caused all the evil, and they should not pass the bill without insisting on introducing a clause to prevent the mischief. Their Lordships might decide as to them seemed best, but he thought that the House should adopt some measures for preventing the House of Commons from becoming the only authorised libellers in the country.
The Earl of Wicklow
admitted, that the evil would not have arisen, but from the resolution of the House to sanction the sale of their publications, and that being the cause of the evil, its removal might be effected by preventing the sale, particularly as the sale was under a late order of the House of Commons in 1835. Being in the country at the time of the discussion of this question in the other House, and being removed from the scene of agitation, it had appeared to him, as it did to every individual with whom he had conversed, that the proceedings of the House were unjustifiable and tyrannical to individuals; but when he read the papers communicated to this House by the other House of Parliament, he confessed, that as to the remedy proposed by his noble Friend below, he had come to a different conclusion. It was evident that the impression, that the practice of the sale of papers was of recent date, was not founded in fact. It appeared that the practice of sale had been since and before the Revolution. It, therefore, became matter of consideration, whether the evil was not one of recent date. He was disposed to think, that the loss to the public would be infinitely greater by adopting the proposal of 980 the noble and learned Lord, than it would be by leaving the circumstances as they at present existed. It had been truly observed by his noble Friend below him, that the publication of those papers had diminished since the existence of the sale. It was clear, therefore, that whatever evil resulted from the publication, which was admitted to be right, could not be much increased by the practice of the sale. There was, it appeared from the reports, seven descriptions of papers which the House of Commons had been in the habit of selling. The votes had been sold since 1688; the petitions to the House had been sold; but was no evil likely to result from their publication? There was also the publication of bills. No evil could result from that. There was also the publication of communications from the Crown. There was no publication from which evil could result, with the sole exception of the publication of minutes of evidence taken before select committees. If such proceedings as they were now anxious to guard against were to be prevented, it could solely be done by prohibiting the sale of that species of paper; but it was impossible to frame any bill so as to prevent the sale of the papers, whilst the sale continued of every other paper published by order of the House of Commons. Under these circumstances, seeing the impossibility of making the distinction, and the conviction on his mind being that the sale was not so much the cause of the evil as the publication, which their Lordships required as a privilege, he thought that to admit the amendment of his noble friend, would be prejudicial to the public in the first place, and in the next, fatal to the bill. It gave him great satisfaction to find, that the House of Commons had descended from the high ground on which it stood, so as to adopt this bill, and send it to their Lordships. He was anxious to see the bill passed. He could not give his consent to a proposition which he knew would defeat its object. It was, therefore, with dissatisfaction that he heard the noble Duke say, he wished their Lordships to judge for themselves, and adopt the course which he recommended, or that which was recommended by his noble Friend below. He thought it right to state this, as he was sure the wish of the noble Duke would have some effect on those who were in the habit of voting with him.
§ Lord Monteagle
was rather surprised at the distinction taken by the noble Duke. He was inclined to adhere to the opinion, 981 that if a question of libel arose, the question of libel was the only question, and that the question of sale was immaterial. It would be indifferent to him if he were the object of a libel, whether it was gratuitously distributed or sold. In all the principal points, quoad justice quoad impartiality, the present system was infinitely better than that proposed. When it was said that the practice of selling these papers was a novel practice, noble Lords were quite mistaken. The argument of the noble Duke was, that the resolution of the House of Commons in 1835, introduced a new practice, and that this new practice was the cause of all the mischief. Every thing proved that that sale of papers by the House of Commons was not a casual circumstance, but one which had been resolved on after due deliberation. He was opposed to this amendment, because he held it to be matter of principle, that one House should not interfere with the internal arrangements of the other. On the propriety of that arragement he might be permitted to speak as a witness. Their Lordships were doubtless aware that the fee-fund of that House was not equal to its expenditure. The deficiency was made up by a vote of the House of Commons. Some injudicious inquirers, as he thought, had asked for the particulars of that expenditure before they agreed to the vote in question. He had regularly refused to grant an account of those particulars, on the ground that their Lordships ought to enjoy full and entire liberty to conduct their business in the mode which pleased them best. Acting on the same principle, he maintained that their Lordships ought not to pass this bill, with a condition that the House of Commons should abandon its present practice, which had been adopted with the full sanction of two such eminent speakers as Lord Colchester and Lord Canterbury, and that too on the mere suggestion of the noble and learned Lord, that a libel disseminated gratuitously was perfectly innocent, but that a libel sold was open to objection and animadversion. Could any man believe that, if this amendment were carried, it would not be fatal to this bill in the other House of Parliament? Let their Lordships reject this bill, if they deemed it injurious to the interests of the public; but if their object was peace, and if they were anxious to restore a calm between the other House of Parliament and the courts of justice, let them restore it effectually, and let them not mar their efforts by introducing into the measure, 982 an amendment which must be fatal to its chance of success.
§ Viscount Melbourne
felt it to be his duty to say a few words upon this subject. The noble Lord who had just sat down had said, that this bill was a measure of peace, and in that sentiment he believed that the whole House concurred, and he could not therefore but strongly impress upon the noble Lord opposite the consideration of the question, whether he would persist in endeavouring to introduce into it that which must infallibly have the effect of throwing out the bill. It was said that the whole of the existing evil was produced by the sale of the papers of the House of Commons. He would not enter into a history of the question, or whether the sale was a course which it was wise to persist in or not, but he could not see why it was said, that the mischief had arisen from that, or why Mr. Stockdale could not as well have brought his action if the papers had not been sold. He could not see that any very strong case of abuse had been made out. A great susceptibility and a wonderful degree of sensitiveness had been exhibited, as to the rights of the subject, and really, from the steps which had been taken, one would have supposed that there was nothing in the nature of abuse or defamation going on in the country. It was agreed on all hands, that it was right that this bill should pass, and, in reality, the only question for consideration was, whether this amendment should be agreed to. The effect of that would he to censure the House of Commons, and seeing that that House was determined not to alter its order or give up the right of sale, they proposed to say, "You shall not have the benefit of this measure, and your officers shall not be protected by it." It was impossible that they could offer a greater insult to the House of Commons than that which was proposed, more especially when, by adopting this amendment, they would impose a limit to their proceedings, in the shape of a penalty, if they did not accept the measure as it was sent to them. The main consideration, which, in his opinion, ought to weigh with them was, the desire to put an end to the unfortunate collision of authorities which had occurred, and which could only tend to weaken both, but he thought that they would destroy the great end and object of this measure by the introduction of the amendment proposed.
§ Lord Colchester
said, that agreeing with the noble and learned Lord who had pro- 983 posed this amendment, that the House of Commons should not have the power of sale and publication, he should vote in favour of his motion, in case of the House going to a division.
§ Lord Ashburton
considered that the amendment would, if carried, insure the rejection of the bill by the House of Commons, and, as it was introduced as a bill of peace, he could not help recommending that that amendment should be withdrawn. He agreed, however, with the noble and learned Lord, that the sale was a great inconvenience resulting from the publication of these Parliamentary papers. He wanted to know what inconvenience would result from making individuals liable in courts of justice for libels inserted in their petitions to, or in their evidence given before, the two Houses of Parliament, particularly if those individuals were enabled to plead and prove the truth of their allegations. He thought, that leaving the bill in its present state, they would leave the whole subject in a state of great insecurity.
§ Lord Langdale
said, that the propriety of freely printing and publishing Parliamentary papers had been placed on various grounds, such as public instruction, the duty of explaining to the country the facts and reasons on which legislation proceeded, and so on; but in his opinion it rested on the duty of obtaining the fullest possible information for the purpose of legislation. All the information which belongs to any subject can only be had by publishing the imperfect information which is already possessed; by such publication those who know more and better are induced to correct errors, and supply deficiencies, and the knowledge upon which legislation ought to proceed has thus a chance at least of being increased to the utmost, and publication being necessary, and the subjects being such as sometimes may seriously affect the character of individuals, it becomes a very important duty to avoid the insertion of injurious and improper matter in the papers. Nobody suspected either House of Parliament of desiring to avail themselves of their great powers to circulate libels and disseminate calumnies. Neither was it a question whether either House might print, publish, and sell, for any body may print, publish, and sell; but the question is, what is to be done when something injurious to individuals happens to be contained in a paper printed and published by either House; for notwithstanding the utmost precaution that 984 could be used, it would occasionally happen that falsehoods injurious to individuals would escape attention and be published, and considering this to be an accident which occurs in a proceeding necessary for the public service, he owned it appeared to him that the servant who had published the paper in the discharge of his duty, and pursuant to the order of the House, ought not to be in any way answerable for the injury done. But he could not think that the injury ought to go without redress, or that it would be inconsistent with the dignity of either House of Parliament to permit it to be tried in a legal way, whether any statement made in a printed paper was false and injurious, and if it proved to be so, to make compensation for the damage done. However, this bill had no such provision, and he did not wish to expose it to hazard by making any proposition to that effect on this occasion. The observations made by the noble Lord who preceded him (Lord Ashburton) had induced him to make these remarks, which he admitted had nothing to do with the clause proposed by his noble and learned Friend (Lord Wynford) who desired to exclude from protection all such Parliamentary papers as should be sold. It was said, that the sale was the root of the evil, but he thought there was a great mistake in that. Some persons had undoubtedly a great repugnance to the sale, thinking that there was something mean and sordid in it; but when evil arose, it was from the publication, and not from the sale. No one had yet held that the right of any party to complain of a paper printed and published was at all affected by a sale of the same paper. His noble Friend, the Lord Chief Justice, in his judgement took care to say that the sale did not affect the question, and he (Lord Langdale) prayed of their Lordships to consider that in all probability the extent of publication had not been increased by the sale of the House of Commons papers, and that the sale had at least a tendency to secure an impartial publication, but above all that the sale is expressly ordered by the House of Commons. This clause if introduced into the bill, would be in substance a censure of that order of the House of Commons, and a declaration that unless they (the Commons) rescind an order which they have shown a strong disposition to maintain, this House will not concur with them in the bill. What could be more likely to lead to a collision between the two Houses? a result which every one. 985 would deplore. He hoped therefore that the clause would be rejected.
The Marquess of Bute
did not know on what grounds the bill before the House could be called a "Bill of Peace." The noble and learned Lord, the Chief Justice of the Court of Queen's Bench, had said, that no powers on earth should make him agree to the bill, unless the succeeding clause to that which they were then discussing was rejected; yet that clause was as adverse to the sale of papers by the House of Commons as the amendment of the noble and learned Lord. Where, then, was the consistency of rejecting the motion of the one and agreeing to that of the other? What proof was that of the peaceful character of" the hill? He was most anxious for peace between the courts of law and the Legislature, but he could not help thinking that the collision which the measure was introduced to remedy was not highly creditable to the character of the House of Commons. That House had let the judgment of the Court of Queen's Bench become law by pleading to its jurisdiction in the first instance; but when the decision was adverse to its claims, it turned short round and declared war against that court. In fact, the House of Commons had, in this transaction, gone out of its way to find ground for a collision with the courts of law, and whatever evil arose out of it was of its own seeking. He (the Marquess of Bute) wished for a bill that would ensure peace, not alone between the House of Commons and the Court of Queen's Bench, but between that branch of the Legislature and the country at large; and this he would venture to say, that if their Lordships adopted the motion of his noble and learned Friend, the House of Commons would not again refuse the bill, even though it were amended. If it should, it would know very little of the feelings of the country—of the feelings of its constituents—of the feelings of those it purported to represent.
§ Lord Denman
was very sorry that any expression of his should be so construed as to lead to the rejection of the bill before their Lordships; a circumstance which he wholly deprecated. If, however, the motion of the noble and learned Lord was agreed to, such would be the case; for the House of Lords could never think of sending the measure so amended back to the House of Commons. Therefore, he trusted, that it would not be pressed, or if pressed, that it would not be agreed to. It was ne- 986 cessary that the power of publication should exist—it was necessary, also, that the abuse of that power should be prevented as much as possible; but it was idle to attribute the evil to the publication of Parliamentary papers; it was the publication of the debates next morning that produced the evil, if evil there was—and that there were no means of avoiding. It was a fallacy to say that the sale of papers by the House of Commons was a new proceeding; it had existed for a very long period; and it was not correct to term the resolutions of 1835 the root of the present evil. The only use made of the circumstance of the sale by him (Lord Denman) in his argument was, that it made the circulation indiscriminate which had formerly been limited and confined. In point of law, the sale made no difference in the state of the case, but in point of law it made all the difference. If, as it is clear, the practice of sale has existed in the House of Commons for nearly two centuries, then it would be an insult to it to attempt its suppression now. The adoption of the motion of the noble and learned Lord would bear that construction, and be attended with results inconvenient and not foreseen by him, in the highest degree, as it would inevitably involve the rejection of the measure.
§ Lord Wyndford's amendment withdrawn.
§ Several amendments were agreed to, and the report was received.