§ Lord Denman
was sorry to trespass upon their Lordships' attention, but it was absolutely necessary, for the vindication of his own character, and the vindication of the administration of justice in this country, that he should bring before them what he found stated of himself in the public press. He had taken the liberty of trespassing upon their Lordships on former occasions, much, no doubt, to their Lordships' annoyance, but certainly with some benefit to the cause of truth, and with the effect of dissipating most erroneous imputations circulated by portions of the public press. He had before him a newspaper — the Morning Chronicle— of Thursday last, which (having, in truth, in the course of his occupations but little time for studying such publications) he had had no opportunity of reading till that very morning. He there found remarks made upon a judgment delivered by himself, in which, among some general terms, were such reflections as these. An hon. and learned Member of the House of Commons was reported to have thus characterised what fell from him.It was a judgment which, if it came to be correctly examined, would be found to contain less of accurate law, as well as less of good sense, than any judgment ever pronounced.Now he (Lord Denman) begged to state that he had become so used to these flowers of rhetoric in the course of the discussions which took place in the House of Commons some few years ago, when that judgment was nightly made the subject of elaborate ex parte criticism, that if the present censure had consisted only of sarcasm in general terms, however strong, or however unseemly, he certainly should never have thought of bringing it as a matter of complaint before their Lordships. He had learned to bear such attacks with equanimity, but this morning, when he thought he should have been enjoying a short holiday from laborious duties, looking over the newspapers, and reading the reported debate, he there found statements which it was impossible for him to know of, without taking the earliest opportunity, in any assembly where he could make his voice heard, of stating his unqualified con- 1098 tradiction to them. General aspersions, he had heard and read as occurring in the same debate, and had passed them over, but the particular charge he had not read till this morning. He thought it better than the adoption of any other course—better than writing to the editor of the newspaper, which, however, in this case he should have proposed to silence, or to the learned individual to whom the statement was attributed—he thought it a less evil than either of those courses to come down to their Lordships' House, and at once to state what the charge made against him was, and what was his contradiction. The charge was stated in these terms:—Look at some of Lord Denman's opinions —remember that which he expressed, that it mattered little whether or not licentious books might be read by the inmates of a prison, old and young persons, placed there with a view to their reformation and amendment. What in the world, he asked, had that to do with the case? If they had got into his own family, he would have seen in a moment what they had to do with domestic government. That any man should be found to say licentious and profligate writings, and their use by prisoners, had nothing to do with prison discipline, I own has astonished me.That was the statement contained in the newspaper, and not lurking in a corner, not put forward even in a leading article, by way of denouncing some obnoxious person, and informing him how highly the newspaper condemned his proceedings, but purporting to be the report of a Member of the House of Commons—the speech of a most distinguished lawyer, the Attorney-general under the late Government, a person (he would add), whom he had always supposed to be a personal friend of his own, to whom he (Lord Den-man) certainly never had been backward in showing any little attention in his power, and who, he thought, would have been the first to repel such an accusation made against him, if it had proceeded from any other quarter. Nor was it an error capable of explanation from the facts being misconceived, for it rested on the plain words of a well-known and authentic document, which even the commonest understanding could hardly misinterpret in this particular. The Chief Justice of England was thus charged here, and in every newspapers in London, and in all their thousand echoes throughout the country, with declaring among other dangerous opinions, that it was a matter of perfect indifference whether licentious and profligate books were placed 1099 or not in the hands of young persons shut up in prisons for reformation. It was very true that the hon. and learned person, to whom these words were attributed the newspaper, went on to say that he had the greatest respect for the noble Lord, and that he had "no wish to detract from the general authority, wisdom, and learning of that noble person," and so on, and that it was extremely desirable to show the deference due at least to his high station, if not to his person. But for the Chief Justice to hold such an opinion, and promulgate it when delivering a solemn judgment in the first criminal court of the realm, was in itself a matter which could not, wherever it was believed, fail to deprive him of all claim to respect or authority. His answer was short: the charge was utterly untrue. He had never uttered one single sentiment, he had never entertained one single sentiment bearing the least affinity to that which had been attributed to him. He thought he could in some slight degree account for the error. His hon. and learned Friend had no doubt been misled upon the subject, if the charge proceeded from him, though he certainly thought it would have been better if his hon. and learned Friend had paused—if he had referred even to himself, even though his words had appeared to bear that meaning—before he took it for granted that such a sentiment could have proceeded from him. The judgment was reported in the ninth volume of Adolphus and Ellis's Reports, and the question before the court was, whether a certain publication, made by order of the House of Commons, was or not a privileged publication, and a legitimate exercise of the privileges of Parliament. He on that occasion took the liberty of denying, as he now respectfully denied, that a publication of a paper containing libellous matter, under a general resolution of the House, to sell all papers of a certain class was a legal exercise of the privilege of Parliament. He would now take the liberty of repeating his opinion, that such a publication was no due exercise of the privilege of the House of Commons, and that the expedient afterwards resorted to, the previous declaration that the order was made in the exercise of a privilege did not prove it to be a matter of privilege. It was likewise stated by him (Lord Denman)—It is likewise fit to remark, that the defamatory matter had no bearing on any question in Parliament or that could arise there.Whether the book found in the possession 1100 of a prisoner in Newgate were obscene or decent could have no influence in determining how prisons could best be regulated.And how could it at all bear upon the question as to the way in which the privilege of the House of Commons exercised, on the inquiry how gaols can be best managed, ought to be whether a particular man had in his possession an obscene book or not? Nobody had ever put forth such a monstrous doctrine, as that books of such a description could lawfully be placed in any hands. Nobody had claimed such a right, or defended such an act; but an individual had complained in a court of justice of the slander which ascribed to him the publication of an obscene book said to be possessed by a prisoner, and he would again ask how that question could affect the consideration how prisons ought to be regulated.Still less (the judgment went on to say) could the irrelevant issue, whether it was published by the plaintiff. The most advisable course of legislation on the subject was wholly unconnected with those facts; the inquisitorial functions would be exercised with equal freedom and intelligence, however they were found to be. And if the ascertainment of them by the House was a thing indifferent, still less could the publication of them to. the world answer any one parliamentary purpose.He (Lord Denman) was now prepared to abide by every word of that sentence i—and indeed of the entire judgment— a deliberately considered and conscientious judgment, which, with the utmost pain and reluctance, he found himself bound to deliver, when a late House of Commons committed themselves, as they did, to the assertion of a privilege which, in his opinion could not be granted without subjecting all the privileges and liberties of the people to the will and power of the House of Commons. He could not but complain of the attempt to fasten on his words a sense wholly foreign to them; and it was therefore that be asked their Lordships to afford him this opportunity of stating his own construction of his own judgment, and at the same time giving a direct contradiction to the statement of which he now complained. He believed there was no other passage of the reported speech which could make the slightest impression on the public mind to his (Lord Denman's) prejudice in this respect, and for this reason he bad been led to recite that passage, of which the perversion and misrepresenta- 1101 tion might probably have produced this unwarrantable statement. Their Lordships had in late instances shown themselves fully aware how important it was that all judicial proceedings should deserve public confidence. The judges were not weak enough to wish to escape from public pinion, but on the contrary, hoped to deserve and to obtain public confidence, as their services could only be useful so long as they possessed it. If this were a light matter—if it were, whether the court should or should not on a particular occasion have protracted its sitting to arrive at a result which is described as inevitable, he would not have thought it worth while to complain of such a censure, if, on the other hand, it had been a question whether any learned person in addressing a grand jury had used too strong an expression, when he was not charged with procuring one unjust committal, or passing one sentence too severe, he might have treated such a charge with that contempt which he might think it merited; but when an individual placed in the high position which he (Lord Denman) had the honour to hold, was in direct terms charged with giving countenance to profligacy and licentiousness—when he was accused of expressing opinions so surprising and shocking, he thought their Lordships would feel that he had not done wrong in bringing this matter under their consideration. It was not easy, when having been brought to speak upon this subject, to avoid making a few observations upon what had lately occupied so much of the public newspapers. He did not wish to revive those tedious and almost interminable discussions, which he thought had been at length settled by the act of 1841. He regarded that as an act of peace, and thought the attacks formerly made upon the judges would not have been revived. But an occasion had been eagerly seized (he thought without any pretence of necessity, for treating, not only himself, but all his brother judges in a manner that must have somewhat astonished them— they were found to be mere lawyers, they had shown themselves entirely incompetent to comprehend and deal with a question so large; their minds were too much contracted by their peculiar habits to embrace it; while superior statesmanlike views and powers can alone arrive at a proper practical judgment upon points like these. Now, for his part, he hardly knew who talked with this self complacency of their own superiority over mere 1102 lawyers; but who, he would ask, were the mere lawyers thus impugned? Mr. Justice Little dale, his late lamented colleague, whom he was now at liberty to praise, because he had paid the common debt of nature, who received on his retirement from the bench that brilliant and just euology from his noble Friend behind him (Lord Campbell), which was equally honourable to both, that learned judge was a great lawyer, was a deep lawyer, was a candid lawyer, and he was a just lawyer. He came to the study of the law with his mind prepared for it by much other study, by gaining academic honours and high distinction, no man was more competent by historical research to form an opinion upon this or upon any other subject either for the purposes of judgment or of legislation. He was one of the mere lawyers. Then there was Mr. Justice Patteson, he, thank God, was not yet ripe for a similar panegyric. He trusted that when he himself should have retired from the bench, Mr. Justice Patteson, much his junior, still might be found there the same ornament and protection of the law and the people which he had always shown himself to be. Another of the judges, another of the mere lawyers, who concurred in that judgment, was Mr. Justice Coleridge—a man who had brought the most cultivated mind, to the study of constitutional law, and in the course of publishing an edition of the works of Blackstone, had been compelled to weigh the legal opinions of that great luminary, after cited as the advocate of unlimited privilege. These were the mere lawyers acting with him on the occasion. They thought themselves competent to appreciate the long, able, elaborate, and learned arguments of his noble and learned Friend (Lord Campbell) when the question was before the court, and he, for one, thought there was so little doubt upon the subject that he was prepared to give an immediate judgment upon it. He believed that Mr. Justice Littledale was also ready to declare the same opinion. But the other two learned judges thought it right to give all the care and reflection that was due to the immense importance of the question, and to that vast mass of authorities which his noble and learned Friend (Lord Campbell) had adduced before them. They therefore, took some weeks for consideration; and after repeated discussions among themselves, their judgment was as decided as unanimous; it had since 1103 been acquiesced in. No appeal had been entered against it in any court of error. It must, therefore, be taken for granted, that there was no judicial power in England prepared to say that that judgment was inaccurate in point of law, or to disregard it as an authority. And when it came to be more calmly considered, and more fully and completely examined, he believed that it would be found to be as much supported by reason as by authority. He would not trouble their Lordships with the history of that conflict which followed, and which none deplored more deeply than himself. The act to which he had before adverted appeared to remove all likelihood of future collisions: but some points arising from the original dispute was still pending in a court of law. He would remind the House that early in the year 1841 the two sheriff's of London having been sent to Newgate for obeying a writ which had issued from the Court of Queen's Bench upon a judgment which the judges of that court all still believed deliberately to be correct in point of law, applied for a writ of habeas corpus. The writ was granted, and a return was made. It was, in general terms, setting forth that the sheriffs had been committed to Newgate by the House of Commons for a contempt of its privileges. The judges thought themselves bound by precedent and by law (but he confessed it was on his part with an aching heart that he acted on that compulsion) to remand those sheriffs into custody. They all thought that the conduct of the House of Commons was unjust and tyrannical, but still they remanded the sheriffs, because they did not feel that they had any right to depart from the precedents which their predecessors had handed down to them. The action of Howard v Gosset had been since tried, in which the privilege of the House of Commons to commit for contempt was held to be a justification for its officers, to the fullest extent then claimed. Now, when such was the fact, he would ask whether it were quite fair to say that the judges had been encroaching step by step, upon the privileges of the House of Commons, since the power which was conceded to them in 1837, when it was determined to plead and bring the matter before them for solemn argument? He would not deny that there might have been some strong expressions — somewhat] too strong expressions perhaps used by himself in the course of that inquiry; but who was there 1104 in the shape of man, who could help feeling for those most respectable persons who had been committed to prison for faithfully acting under an order of a court of law, the law, in a manner perfectly correct and legal, when that very court was compelled by precedent to continue them in custody? Beyond this, what could be expected by any popular assembly, or how was it possible for the judges to show, by a greater sacrifice than this, their sense of duty and respect for the law and privileges of the House of Commons? Was it then he would ask, quite worthy of persons in high station to say, "Oh, the judges are persons whom we the House of Commons control and keep in awe—we might call them to the Bar of the House, and if they persevere in resisting our privileges we might send them to Newgate. And hence we will be ready to impute opposition on the part of the judges to feelings of jealousy of power that may be formally employed against themselves?" The judges looked to the Government, in the discharge of their high functions, for a frank and hearty support; and he was perfectly sure, that when they appealed to the noble Duke opposite, as well as to the Government generally, they would never appeal in vain. But at all events, he did not feel that the Prime Minister of England, all powerful and all popular as he might be, and owing his power and popularity to the House of Commons, could be justified, from anything that had taken place, in suspecting that the judges, from such mean motives would play so paltry a game. The just privileges of the House of Commons secure to them, with their fellow-subjects, the benefits of this free Constitution. Their real privileges are as necessary for their preservation of the rights of all, as the right of appealing to the courts of justice for any lawful object. Sensible of this truth, the judges will act, as they have acted, on the law, admitting every claim which it acknowledges, and withholding however violently demanded, whatever it refuses to sanction. He could say much more, but he would abstain; he, however, confessed he entertained the hope that he had at least been successful in rescuing before their Lordships his name from a foul calumny.
I am sure there can prevail among your Lordships but one opinion and one feeling, unbroken by any diversity or shade of doubt, and that is, 1105 the opinion and the feeling which will lead you to echo heartily and instantly the last sentence pronounced by my noble and learned Friend, that he has most satisfactorily and most triumphantly vindicated himself from the foul, the false, and slanderous charge which has been levelled at him—not by insinuation—and that is its only merit—but by plain and distinct accusation, in the libel of which he complains. I think your Lordships must also be prepared to go along with me in the expression of another sentiment on the present painful occasion—that the Lord Chief Justice had no choice—that he could not, whatever might be his inclination, that he might not—that, with due regard to his own character, and to the character of the high office which he fills, he dared not allow to pass unnoticed such a libel as this. He instantly hied to his place—he instantly met the charge—he instantly gave that contradiction which, if it had only proceeded from his own assertion, would have been sufficient to satisfy your Lordships, and me who know him, and the rest of his countrymen, that the charge was as foul as false, and as false as it was foul. I have, however, another contradiction to give proceeding from another, but an appropriate quarter. The accusation was couched in the form of a pretended report of a speech, purporting to be delivered by an hon. and learned Friend of mine, for whom I, with my noble and learned Friend, entertain the greatest esteem, as if my learned Friend had given vent to these slanders in his place in Parliament—a great aggravation to the charge, permit me to say—an aggravation which barbs the arrow which malice had pointed—which tends to make it stick in the wound that malignity had made. Because, not coming from a mere editor, or printer, but coming from a great' member of our profession, in the discharge of his parliamentary duty, a charge of this nature is not so easily got over—not so swiftly forgotten—and not so safely borne. Accordingly, the slanderer chooses to put it in the form of a report of a speech delivered by that learned person in the discharge of his parliamentary duty, upon a grave question of parliamentary privilege. But I hold in my hand, from that learned sergeant, a distinct disclaimer—an articulate disavowal—a positive and deliberate denial of having made any such charge against my noble and learned Friend, 1106 He said he was not aware, until his attention was called to them this morning, of the words which some one had chosen, when professing to report a speech of his, to put in his mouth. He then looked at it, and, no doubt, though he says it not, he saw with astonishment this speech which had been fabricated for him. He adds,I was for the first time, this morning, referred to the report in the Morning Chronicle, in which I am supposed to have imputed to Lord Denman that he said, 'It mattered little whether or not licentious books might be read by the inmates of a prison.' I am certain (says the learned sergeant)—I am certain that I never imputed to Lord Denman to have said anything but that the censure on the Stockdale book was irrelevant to the subject of the report.Which is, in precise, distinct, and almost literal terms, the very expression that my Lord Chief Justice cited from the 9th volume of Adolphus and Ellis's Reports," as having been the substance of the argument used by him in that memorable judgment. My Lords, I hope and trust, I think I may almost say from a knowledge of the parties that I expect to see that this disclaimer and denial of the learned sergeant will be followed up by the course which is fit and proper to be taken, either by the worthy Baronet, or some other person on his part, who has the superintendence of that daily paper of which he is said to be the proprietor. As that worthy Baronet is a member of Parliament, he must be aware of the falsehood of the charge made, not so much against my noble and learned Friend as against the learned sergeant; for I hold it the gravest offence against that learned sergeant to put such words in his mouth without a shadow or colour of truth. It is well known to your Lordships—I hope it is known to the public—I trust and hope it is also known to those who are proprietors of newspapers and who prepare reports of debates—(generally with great accuracy, with extraordinary accuracy, and with great ability, considering the difficulties attending upon that task with great usefulness both to the public and to Parliament, as I am always the first to admit, and 1 will add, generally speaking, with great fairness and impartiality towards the parties reported) —I hope that those persons to whom I am referring — that the proprietors 1107 and responsible editors of those papers in which Parliamentary reports constantly appear, are aware of the law of this subject. If a man in either House of Parliament chooses to utter words importing a libellous charge against any person whatever, in or out of Parliament, he, the Member of either House of Parliament, is, by the common law of the realm, and by the unquestioned and unquestionable privilege of Parliament, and by the letter of one of our most sacred statutes—the Bill of Rights, wholly irresponsible for what he has said in his place, in any court of law, or any other place whatever. But no person who may take upon himself to print or publish what he said, is in any manner or way whatever screened, or protected, or aided, by Parliamentary privilege; and whoever publishes to the world any libellous charge made by any person, in the discharge of his Parliamentary duty, is, by the law of this land, as declared in repeated judicial decisions, responsible to the law for the publication of the slander. This is a law as well known to be the present law of the land as any one chapter amongst our statutes; and 1 hope and trust that those who have erred, who have sinned so grievously upon this occasion, will now be aware of what the law of the land is upon the point, and that they will act for the future accordingly. It is wide of the present question that I should say one word upon the latter part of my noble and learned Friend's impressive speech. We are not here called upon to discuss a matter upon which there can by possibility continue to exist a difference of opinion; but I should not think that I discharged my duty towards your Lordships, towards my noble and learned Friend the Lord Chief Justice, and towards those venerable Colleagues of his who sit with him in the Court of Queen's Bench, and who united with him in pronouncing that most memorable decision to which he has referred, if I did not add that I entirely, and from the bottom of my heart and soul, agree in every one particular with the judgment so pronounced; that I heartily concur in the renewed statement of his own deliberate opinion of that judgment which my noble and learned Friend has this day given to us; and that I rejoice in this opportunity of feeling myself relieved from all scruples of declaring such to be my opinion. This I could not have done whilst proceedings were pending that 1108 might have brought the case before me judicially in this House; but I am now at. liberty to state that my own individual opinion is in strict accordance with that of the Court of Queen's Bench; because it turns out that there is an end to the case, and that the other House of Parliament, after the decision thus pronounced against them, have not thought fit (therein exercising a most sound discretion) to appeal to your Lordships from that judgment, which must, therefore, be deemed and taken to have settled for ever the law upon the point.
If my noble and learned Friend the Lord Chief Justice eels for an instant that any stigma could attach to him from the imputation contained in the erroneous report to which he has referred, I think he did well at once to come down to this House, and with indignation to repel the charge alleged against him. For all who knew my noble and learned Friend must be aware that there could not be the slightest foundation for such a charge. Never sat judge in Westminster-hall more earnest to inculcate pure morality than my noble and learned Friend. I will add that he is a bright example in all the great qualities of a judge to all who administer justice. But my noble and learned Friend having gone further than merely setting himself right—having entered into the general law of the subject of parliamentary privilege, I think it becomes me, now that I have the honour of being a Member of your Lordships' House, to say, that I by no means acquiesce in the law as my noble and learned Friend has laid it down. I entertain, now that I am a Peer of Parliament, the very same sentiments that I expressed when I had the honour of being a Member of the House of Commons. My opinion is this, that your Lordships' House and the House of Commons are the sole and exclusive judges of their own privileges. My opinion is this, that the Court of Queen's Bench, when they were called upon to give a decision with respect to the power of the House of Commons to publish papers for the information of the public, ought to have been satisfied that they had no jurisdiction to determine upon the existence of that privilege.[Interrupted by talking and a cry of " Order, order."]
§ The Marquess of Lansdowne
I took 1109 the liberty of calling to order, because, sitting in my place in Parliament, I was prevented from hearing the observations of the noble and learned Lord who was speaking, by the loud talking of four noble and learned Lords who had assembled near the Woolsack.
But my noble Friend did not call to order till all the talking was entirely at an end.
resumed: If my noble and learned Friends will do me the honour to listen to me for a few moments, I may be able to convey to them some information that may be useful for them, and which they have not always borne in mind. Since the time of Chief Justice Fortescue down to the reign of her Majesty Queen Victoria, the greatest judges who have sat in Westminster-hall have declared that it did not belong to them to decide upon the privileges of Parliament. I concur in the panegyric passed by my noble and learned Friend, the present Chief Justice, upon his late venerable and excellent colleague, Mr. Justice Littledale —a more profound lawyer never sat in Westminster-hall; but in entire accordance with the eulogium which I, speaking in the name of the unanimous bar of England, had the honour to pronounce upon him, I now say he was not the very fittest, nor most competent person to decide upon a question of Parliamentary privilege. This House and the House of Commons, have from time immemorial determined their own privileges. This is a right which has been uniformly exercised by your Lordships' House in ancient and in modern times. Your Lordships have repeatedly stopped actions that were brought to question your privileges. This happened again and again during the reign of George 3rd. It happened whilst that great and distinguished judge, Lord Eldon, presided upon the Woolsack. In a case where an action had been brought to question the rights and privileges of this House, after judgment had been obtained, the parties to the action were summoned by your Lordships to the Bar, and were threatened to be sent to New-gate, if they did not at once renounce the benefit of the judgment they had obtained. Such was the law in the time of Lord Chancellor Eldon; such I believe to be the law in the time of Lord Chancellor Lyndhurst. I rejoice to hear the contradiction which my noble and 1110 learned Friend (Lord Brougham) has given from Sir Thomas Wilde, of the language attributed to him in the report. 1 knew, that my hon. and learned Friend (Sir Thomas Wilde) could never have used such language. But my noble and learned Friend, the Chief Justice, upon the occasion of delivering the memorable judgment of the Court of Queen's Bench, in Stockdale v. Hansard, stated that which I think might well be complained of. There certainly was not the slightest pretence for saying that my noble and learned Friend had asserted in his judgment, that obscene books might be read without offence by persons in gaol; but what I understood my noble and learned Friend to state was this—that the House of Commons had no right to inquire into that; that it was perfectly immaterial to the inquiries of the House of Commons, whether obscene books were read by prisoners in gaol or not. Now, there, I think, he was mistaken. It was competent for the House of Commons to consider whether a bill should not be brought in to regulate the gaols through-out England. Prior to the introduction of such a measure, was it not most material that they should see what the regulations and discipline of the gaols had been, and whether the use of obscene books was permitted to the prisoners or not, in order, if such should turn out to be the fact, that so enormous an abuse might be remedied? It was essential, therefore, that the report made upon such a subject, should state the abuse, if the abu e were found to exist. Moreover, it was most material, that the fact of the existence of the abuse should be communicated to the public, because the public would thereby be prepared for such legislation upon the report, as should have the effect of correcting and eradicating the abuse. My noble and learned Friend has thought fit to pronounce a panegyric upon the judgment of the Court of Queen's Bench. I should be unworthy to stand upon the floor of your Lordships' House, if I did not, with equal boldness, pronounce my opinion of that judgment. I think it was entirely erroneous, and contrary to law. I think, in the first place, that the judges had no jurisdiction to determine the question of Parliamentary privilege; and, in the second place, I think, that if they had jurisdiction to determine the question, they determined it impro- 1111 perly. Your Lordships need not be afraid of my entering at any length into this subject. I occupied, unfortunately, no less than sixteen hours in trying to persuade my noble and learned Friend, the Chief Justice, to decide in favour of the House of Commons. I will not give your Lordships upon the present occasion even an abstract of what my arguments were before the Court of Queen's Bench, but I will refer your Lordships to that which is infinitely better than any argument of mine could possibly be, namely to an act of Parliament passed by your Lordships' House. My noble and learned Friend, says that he believes the judgment of the Court of Queen's Bench, has been generally approved of. In my opinion, and according to my observation, that judgment was at once condemned by Westminster-hall. All the most eminent lawyers on both sides in politics, honouring the conscientious intentions of my noble and learned Friend—speaking most respectfully of him and of his learned Colleagues—still believed that the judgment was quite erroneous. And I think, that your Lordships have since reversed that judgment. What was the foundation upon which the judgment rested? My noble and learned Friend, the Chief Justice stated, that the House of Commons has all the privileges which are necessary for the due performance of its functions as a branch of the Legislature; and he added, that if he thought that the right of publishing for the information of the public, what the House of Commons considered necessary, was essential to the due discharge of the functions of the House of Commons, it must, of course, in that case, be considered and treated as a privilege of Parliament; but my noble and learned Friend, the Chief Justice, and Mr. Justice Littledale, Mr. Justice Patteson, and Mr. Justice Coleridge, were all of opinion, that the power of publishing papers for the information of the public, was not necessary for the due discharge of the functions of the House of Commons. What followed? Your Lordships agreed to a bill sent up to you from the other House of Parliament, the recital of which is to this effect:—Whereas it is essentially necessary to the due performance of the functions of the two Houses of Parliament that they should have the power of publishing whatever of their proceedings they think may be requisite for the 1112 information of the public; therefore, be it enacted, that hereafter no action, or indictment, or proceeding, shall be instituted in respect to anything that is ordered to be published by either House of Parliament.So that this power of libelling, as it has been called, is established by act of Parliament. Either House of Parliament may order to be published whatever it thinks necessary for the information of the public. Why, then, your Lordsships (agreeing to the act of Parliament which makes that declaration) have differed in opinion from my noble and learned Friend, the Chief Justice, and his learned Colleagues, Justices Littledale, Patteson, and Coleridge. Your Lordships are of opinion, that this power of publication is essentially necessary to be possessed, by both Houses of Parliament, and, therefore, you have enacted that the power shall be enjoyed by both. The foundation of the judgment of the Court of Queen's Bench was, that the power of publication was not essential to the due discharge of the functions of Parliament. Your Lordships declare that it is essential, and pass an act of Parliament to carry out your views upon the point. I maintain, that that act of Parliament amounts to a Parliamentary reversal of the judgment of the Court of Queen's Bench. There was no occasion for any writ of error; your Lordships, by act of Parliament, reversed the judgment. Under these circumstances, I trust, that your Lordships will not come to the conclusion, that the House of Commons made an unjust or an ineffectual struggle. I glory in having been a Member of that House of Commons. I think, that in committing the sheriffs of London and Middlesex, the House of Commons did what it was imperatively bound to do. I say, that that House of Commons achieved a triumph for the constitution by maintaining its privilege, because either House of Parliament may now, without danger or apprehension of actions or indictments communicate whatever may be thought useful to enlighten the people, and lay the foundation for future legislation.
§ Lord Abinger
When my noble and learned Friend says, that all the lawyers in Westminster-hall dissent from the judgment pronounced by the Court of Queen's Bench, I am anxious to say that as far as my knowledge and experience go, I must entirely differ from my noble and learned Friend. I do not wish to offer any opin- 1113 ion of my own upon the question, because I believe it to be quite unnecessary for me to do so; but as far as I have had opportunities of learning the general opinion of Westminster-hall upon the subject, that general opinion perfectly coincides with what has been stated by my noble and learned Friend, the Chief Justice. My noble and learned Friend (Lord Campbell) at the time that the judgment was pronounced, was not in a situation to ascertain truly, what the real opinions of the bar were. He then held a high and influential situation under the Government, and was surrounded by persons who were not likely to differ from him in opinion. But, as far as I could learn the opinion of Westminster-hall upon the subject, I must say that the general feeling there coincided with what I believe to have been the univeral opinion elsewhere.
§ Lord Denman
In the observations which I considered it due to myself to offer to your Lordships, I had no intention of making it necessary for my noble and learned Friend (Lord Campbell) to enter into any argument upon the question decided by the judgment of the Court of Queen's Bench. If my noble and learned Friend wished to protest against any opinion of mine, I should have thought that protest sufficient; or to draw inferences from any measure that your Lordships have acquiesced in, I apprehend that he might have chosen a more convenient and a more fitting opportunity of doing so than the present. What necessity was there for my noble and learned Friend to go into a long argument to show that the judges were wrong? And when my noble and learned Friend refers to the act of Parliament, and says that your Lordships have reversed the judgment of the Court of Queen's Bench, I beg to remind your Lordships with what different feelings that act of Parliament was received at the time it was passed. We did not then see anything of the great sticklers for parliamentary privilege—of the great champions of the rights of the people as asserted by the House of Commons—of those who said that inquiry was necessary, and that inquiry would be useless unless it were carried out by the right and power to publish, we then saw nothing of these persons; coming forward to congratulate themselves that the proposed act achieved their triumph over the courts of law; but on the contrary, sad lamentations and fore- 1114 bodings—lamentations that any act should be thought necessary, since it was a confession that privilege could not maintain itself, and forebodings that all the powers of Parliament must thereafter be referred to the courts, the expounding of acts of Parliament. It is very true that the preamble of the act says, that it is necessary for the due discharge of the functions of the Houses of Parliament that they should possess the power of publication. But what publication? The publication of all that Parliament thinks it fit and proper that Parliament should publish. Does not that impose a duty upon the House of Commons—a duty not imposed before—and a duty which I must say the House of Commons had most grossly and scandalously neglected. Am I not justified in so speaking when I see that upon the journals, a petition is allowed to remain containing imputations and charges upon that most learned, most excellent, most irreproachable judge—Chief Justice Tindal?—a petition disgraceful to those who wrote it, disgraceful to those who presented it, and doubly disgraceful to those who published and circulated it to the world at the price of three halfpence a sheet. Tell me that it was not necessary for the judges to assert the right of the subject, and to stand up against the assumed privilege of the House of Commons? What was the occasion out of which this question of privilege arose? My noble and learned Friend thought I had said, that I considered it unnecessary for the House of Commons to inquire whether obscene and scandalous books ought to be in the hands of the prisoners in our gaols. I totally deny it. I never said any such thing. I spoke in reference to the particular case before me, fully admitting the duty of Parliament to obtain such information as might lead to effective legislation on every subject, but as distinctly denying that the fact of some prisoner being allowed an improper book in Newgate, or the fact of Mr. Stockdale having printed that book, and much less the publication of those facts to the world for money, could have any connection with the legislative proceeding. I well remember explaining how the controversy had arisen, when that act was before your Lordships, and the astonishment of my noble Friend, whose absence we all lament, the noble Viscount then at the head of the Government, when he learned from how small an egg this giant discord had sprung. The commis- 1115 sioners for inspecting prisons had reported to the King—and their report was laid before the House of Commons, unfavourably to the discipline of Newgate. They stated, that an obscene book was found in the possession of a prisoner there. The court of aldermen who superintend the discipline of the prison defended the book, maintaining that it was not an improper book, but a scientific book. Now, it might be a scientific book, and still a very improper book to be placed in the hands of prisoners. Instead of taking that issue the commissioners persisted in this immaterial charge, resting it on the fact (among others) that Stockdale was the publisher of it. The aldermen rejoined. This idle controversy was sent to his Majesty and to Parliament, and printed under the resolution of the House of Commons, for general sale at so much a sheet. Was this necessary for the privilege of Parliament? Was this necessary to enable Parliament to legislate? What a false issue, what a fictitious case! There is not a word of truth in it as referable to these proceedings. I was astonished at the disingenuous manner in which the case was brought forward, and the same charge of exposing prisoners to contamination from improper books then advanced against the judges which has recently been revived against me. But to come back to this act to which my noble and learned Friend (Lord Campbell) alludes. I admit, that the preamble says, that it is essential for the due discharge of the functions of the two Houses of Parliament, that they should possess the power of publishing whatever they may deem necessary to assist them in their legislation, and I rejoice that it is made so. There is no part of my life that will gainsay the opinion that imperfect publication is one of the greatest evils; and that when information upon a particular subject is made the basis of legislation, the fuller and more ample the information obtained and published upon that subject the better. As a judge, 1 denied that that privilege existed before to the injury of individuals; as a legislator, I concurred in its being permitted for the future. As a judge I could but lay down the law as I found it; as a Member of Parliament, I agreed to it as a change for the public advantage. But is the power to publish thus vested in Parliament to be free from all manner of restraint? Can every man who thinks he has a grievance go before Parliament, with an ex parte position, as he thinks proper, and 1116 then circulate his libel through the country at the public expense, at the cost of so much a sheet? On the contrary, the right to publish that which is thought fit and proper to be published, imposes on Parliament the duty and responsibility of considering the fitness and propriety of each publication. But the act is called, inconsistent with the judgment because the one denies the necessity of publishing, the other asserts it. This remark shows an entire forgetfulness of the difference between a judicial and a legislative proceeding. My noble and learned Friend still denies that a court of law can form any opinion on privilege of Parliament; he says, that mere lawyers as we are, we cannot understand the subject. Perhaps not; perhaps we cannot define all that is privilege, but are there not some things which we know not to be privileges? Suppose the House of Commons impose a fine in the name of privilege; if its lawfulness should be questioned before me, do I not know that that House enjoys no such privilege? Can I refrain from acting on that knowledge? Stronger cases may be supposed; nor can the power of enforcing whatever it may call privilege be conceded, without absorbing all other rights inherent in all classes of our fellow subjects, against this despotism, the judges vindicated the law, and every other question in the cause was comparatively insignificant. Opinions may be divided on minor propositions brought before us, respecting the actual exercise of the privilege of publication. Some may think it was established by the evidence. We thought otherwise, and I think so still; and as a historical question, which happily it has now become, the balance of reasoning appears to my mind entirely against the possession (by either House of Parliament) of the privilege of indiscriminate publication. 1 will not enter further into the subject. I am sorry to have brought upon your Lordships even the trouble of hearing much of this ancient and entirely by-gone question. My apology is, that 1 really could not have gone on thus performing my duty with complete satisfaction, I could not have faced the grand jury of Sussex whom I must charge to-morrow, if I had allowed the calumny to pass unnoticed. Allow me now, in conclusion, to express the very sincere gratification with which I have listened to the handsome terms in which my hon. and learned Friend (Sir T. Wilde) had spoken of myself, disclaiming as he has 1117 done through the medium of my noble and learned Friend (Lord Brougham), the statement attributed to him.
I do not wish to add to the length of the present discussion; but it is yet impossible for me to refrain from some expression of surprise at what I have heard from my noble and learned Friend (Lord Campbell) behind me. My noble and learned Friend astonishes me, as it must have astonished your Lordships, and I believe, when the thing gets abroad, will astonish the whole of the bar of this country, with a statement that all Westminster-hall disapproved—[Lord Lyndhurst; Of all parties.] Ay, all Westminster-hall, of all parties, of all shades of political opinion, disapproved of the judgment of the Court of Queen's Bench. My noble and learned Friend has not been mis-reported or mis-stated; we heard this with our own ears. But my noble and learned Friend the Chief Baron (Lord Abinger) has borne a totally contrary testimony as to the opinion and feeling of Westminster-hall upon the subject. Beyond the testimony so borne by the noble and learned Chief Baron, it is perhaps unnecessary to go; only I add, for the honour of the bench upon all similar occasions, and especially upon this, that if there be any one species of testimony against the validity of the judgment of a court of law which has less weight than any other testimony, than all other testimonies—if here be any one authority less strong, potent, and weighty, against the judgment be any of the judges of the land—if there of any one authority which is lighter than a feather in the balance, in order to countervail the opinion of the court and the grave and venerable authority of the Queen's sworn judges, administering justice and the law according to their oaths —it is precisely the testimony, precisely the authority, precisely the opinion of such persons as are represented on the present occasion by my noble and learned Friend (Lord Campbell)—namely, the advocate in the cause—not the sworn judge, but the retained counsel in the cause, who has been defeated by the reasons put forward on the opposite side, and who has been condemned by the unanimous judgment of the court whom he has addressed. And if anything can, by possibility, still more detract from the weight of censure so expressed, and the authority of opinions so pronounced, it may be found in the supposition that the 1118 learned counsel would not sit down with a perfectly free and unbiassed mind, under an entire discomfiture, after having argued on one side of the case, as my noble and learned Friend (Lord Campbell) admits he did, for no less a space than sixteen hours, and at the end of all that time finds that all the judges have agreed and decided against him. I have only to add, that my noble and learned Friend the Master of the Rolls (Lord Langdale) expressly (though in my absence, but I know the fact from the very best authority) gave his support to the bill after which my noble and learned Friend (Lord Campbell) rather surprised me by relying as an authority against the judges upon the ground that it was not at all inconsistent with the judgment of the Court of Queen's Bench. I think it my duty to state this, as otherwise the bill in question might seem to convey an imputation upon the very important judgment delivered in this celebrated case.
§ The Duke of Wellington
I merely wish to offer one observation upon what has fallen from my noble and learned Friend in respect to the Act of Parliament passed a year or two since, to declare the privilege of Parliament as regards the publication of papers. The noble and learned Lord (Lord Campbell) says, that that act was a contradiction of the judgment of the Court of Queen's Bench, and was wholly inconsistent with it. I wish just to state what passed in this House when the act was under your Lordships' consideration — namely, that it was the noble and learned Lord the Chief Justice of the Queen's Bench who supported the measure, and prevailed upon your Lordships to adopt it. Answering only for myself, I can say that I was persuaded to vote for the measure entirely in consequence of the speech of the noble and learned Chief Justice, who, I take it, would not have urged the bill upon the adoption of the House, if it were so entirely inconsistent as the noble and learned Lord (Lord Campbell) has represented it to be with the judgment of the Queen's Bench.
As I before stated, the foundation of the judgment of the Court of Queen's Bench was this—that the power claimed by the House of Commons to publish their proceedings was unnecessary to the due performance of their functions— that if it had been necessary, the judges would willingly have accorded it, and have decided in favour of the privilege. That 1119 was the main foundation of the judgment. The preamble of the act says, "Whereas it is essentially necessary for the due performance of the functions of the two Houses of Parliament, that they should possess the power; therefore it is enacted that the power shall be enjoyed by them." This is the reason upon which I submit to your Lordships that substantially the act of Parliament is a reversal of the judgment of the court, and that it is wholly inconsistent with the grounds upon which that judgment was founded. With respect to what has fallen from my noble and learned Friend (Lord Brougham) I may perhaps be allowed to remark, that it would have been appropriate enough if I had had the presumption to give my own individual opinion of the judgment of the court. If I, who was the advocate in the cause, had stated upon my own authority merely, that the judgment was wrong, it would undoubtedly have been very inappropriate, and entitled to no weight. But I said that others of much higher authority than myself had intimated opinions adverse to the judgment—that all the lawyers in the House of Commons, on both sides, or rather on all sides of politics, Whig and Tory, Liberal and Conservative—those who were members of the late Government —those who are connected with the present Government — all with one voice agreed that the judgment of the Court of Queen's Bench was erroneous. It was not I, individually, who ventured upon the expression of such an opinion; but I ventured to remind your Lordships that such was the opinion entertained by others. Of course, when I say that all lawyers of all parties agreed in one common opinion upon the subject, I do not speak of the judges, who have none of them had the indiscretion to pronounce an opinion upon the point- But at the bar, I believe, the opinion was almost unanimous. My noble and learned Friend the Chief Justice has referred to what I certainly agree with him in considering as an enormous abuse —the presentation and publication of a petition in the House of Commons against that most learned and most distinguished judge, the present Chief Justice of the Court of Common Pleas. I s regret that such a petition should ever have been received, much more that it should have been printed. But the abuse of a privilege does not at all show that the privilege does not exist. I could remind your Lordships of many judgments delivered in 1120 Westminster-hall in former times—most disgraceful to the character and memory of the judges who pronounced them to show that the mere abuse of power is no proof of the non-existence of it. I am not at all sorry that my noble and learned Friend the Chief Justice has brought this matter under your Lordships' notice. Indeed, I rejoice that he has given an opportunity to my noble and learned Friend (Lord Brougham) behind me, to repel, upon the authority of Sir Thomas Wilde—a friend common to my Lord Chief Justice and to myself, and who, I am sure, would be the last man in the world (for though he be strong in his opinions, he is firm in his friendships) to calumniate any man, and least of all my noble and learned Friend the Chief Justice, whose character, learning, and manners, all of our profession join in loving and venerating.
I must say that I do not think that my noble Friend, having now twice addressed your Lordships, has at all improved his case by the effort he has just made. [Lord Campbell: How often have you spoken?] How often!— that is no answer to the charge which I am now making against my noble and learned Friend: which is, that he renders his case worse and worse the more frequently he rises to defend it. I ventured just now to express an opinion to your Lordships, that the counsel who had been defeated in an action was a very bad authority upon which to rest an opinion adverse to the judgment of the court. My noble and learned Friend said, that all Westminster-hall disapproved of the judgment. I took it for granted that that was only another way of telling your Lordships that he disapproved of it himself. But what does my noble and learned Friend say?—Oh (says he), it was not I who impugned the judgment, but the party whom I represented and defended—all the lawyers in the House of CommonsThat is to say, that it was not the counsel but the client who disapproved of the judgment; because, upon the occasion in question, the House of Commons was the client of my noble and learned Friend.My opinion (says my noble and learned Friend) goes for nothing. I will not trouble your Lordships with that, but I will give you the opinion of my defeated client—all the opinions of all the lawyers in the House of Commons are against the judgment of the Court of Queen's Bench.1121 I must say that there was one illustrious J exception in the House of Commons—Mr. Pemberton, who wrote a most excellent pamphlet upon the question, taking precisely the same view as the Court of Queen's Bench. [Lord Campbell: That was upon the question of jurisdiction.] No matter, it comes to the same thing.
Here the matter dropped.