BREACH OF PRIVILEGE.

HL Deb 14 July 1845 vol 82 cc431-67

Order of the Day for the attendance of Peter Taite Harbin and John Harlow read.

John Harlow called to the bar, and examined by the LORD CHANCELLOR.

Where do you reside, Mr. Harlow?—At 9, Leicester-square, my Lord.

Have you brought an action lately against Thomas Baker?—Yes, my Lord.

For what have you brought that action; for false and malicious language uttered before the House of Lords in giving evidence before a Committee of this House?—Yes, my Lord.

Have you anything further which you wish to say on that subject?—The only thing I wish to say is that I am very much injured in my affairs by the statement which was made, and which is entirely untrue.

You are aware that a complaint has been made to this House of your conduct in bringing that action?—Yes, my Lord.

And the complaint is, that it is a breach of the privileges of this House?—Yes, my Lord.

Do you wish to say anything on the subject?—I was not aware that it was a breach of privilege at the time the action was commenced; and I hope your Lordships will give me the means of seeking redress, since I have been so materially injured by that statement.

By Lord CAMPBELL: Then you still mean to go on with the action?—I am not at this moment prepared to say that I will.

You are not prepared to say you will not?—No, my Lord.

By the Earl of RADNOR: Are you prepared to say that you have suffered in your business in consequence of that statement before the Committee?—Yes, my Lord, I can prove it; and the statement was perfectly false.

The LORD CHANCELLOR: You may withdraw from the bar, but you must not leave the House.

Peter Taite Harbin was then called to the bar, and examined by the LORD CHANCELLOR.

What are you?—An attorney and solicitor.

Were you the attorney employed by the last person to bring this action?—I was employed by the last witness to bring an action.

Against Thomas Baker?—Yes, my Lord.

For defamatory language?—For defamatory language, my Lord.

Are you not aware that those words were spoken in giving evidence before a Committee of this House?—The Report states that the words were spoken in a Committee before this House.

And that was the foundation of the action?—It was, my Lord.

Do you wish to say anything further on that subject? You are aware that a complaint has been made of your conduct in that respect; do you wish to say anything to this House on the subject of that complaint?—I would observe, my Lord, that the instructions were laid before an able counsel, who advised on the subject, before proceedings were taken, and the action has been brought in consequence of that opinion.

Are you going on with that action?—It is at present pending.

Do you mean to proceed with that action?—I have not had instructions to discontinue it. Perhaps you will allow me to state, my Lord, that the information which Mr. Baker gave before your Lordships' Committee was perfectly unfounded, inasmuch as the conviction has been quashed, and in the Report Mr. Baker stated that he should be able to prove what he stated to be true.

The LORD CHANCELLOR: That is wholly immaterial to the present question. You may withdraw; but you must not leave the House.

The witness then withdrew.

The Lord Chancellor

I now move, my Lords, that John Harlow has been guilty of a Breach of the Privileges of this House.

Lord Brougham

^* My Lords, in rising to address you on what I consider to be beyond all comparison the most momentous question that has been mooted since I have had the honour of a seat in this House, I cannot avoid casting my eye back with some satisfaction over the four years during which I had the honour, by the gracious appointment of my late Sovereign, to preside over the proceedings ^* From a Pamphlet published by Ridgway. of your Lordships; and I account it in every view, both general as regards you, and personal to myself, a matter of great gratulation to me, and possibly, I might say, a source of grateful feeling toward your Lordships, that during those four years, though there were many occasions on which the privileges of this House might be asserted, and, although upon no occasion did I shrink from the discharge of ray duty when I felt it imperative on me to support to the utmost those just privileges, yet that no occasion ever presented itself on which I was called upon, as Speaker of this House, to make such a Motion as that which it has now fallen to the hard lot of my noble and learned Friend to make—that Motion for interfering with the strong hand of mere force, or, to mitigate the expression, under cover of our privileges interfering by the strong arm of power with the ordinary administration of justice. I rejoice that I, presiding in the highest court of law—that I, presiding amongst the judges of the last resort in all suits, as well criminal as civil—was never called upon to put from the Woolsack a question which should interfere with the ordinary course of the law, and should by the interposition of this House, and with the arm of power, stay the ordinary administration of justice. My Lords, the subject of Parliamentary privilege was not new to me when I entered these walls. I had the opportunity during a long life passed in Parliament, and upon more than one occasion, of assisting in the discussions which took place in the House below, on what was called, and justly called, the great case of Parliamentary privilege, raised in the discussion affecting Sir Francis Burdett. My Lords, I argued that case at your Lordships' bar, and I will only observe, in passing, that there was another felicity which I now find I enjoyed, and of which I was not at the moment sufficiently aware; for though I argued that writ of error at your bar, though I contended against the privileges asserted by the other House, though, pro virili parte meâ, I attacked them, I was not called upon as this attorney is now called upon, to suffer for venturing as an attorney to do his duty to his client. I was permited by that lower House, albeit a Member of it, as your Lordships do not seem disposed to suffer this attorney, to perform my duly to my client, and for half the day I impeached their privilege; I treated with contempt the arguments asserting their usurped right, I exposed, I assailed, I laughed to scorn the assumption of power without right on which that privilege was made to rest. If there be any ground for proceeding here to commit this attorney for doing his duty by his client, in bringing this action for his client, there was then the same power, which the Commons' House of Parliament might have used. They were supposed to have been generally well aware of the extent of their privileges; they were ever abundantly prone to assert them, from the time downward of Holt, who said that they "kept a hawk in the shape of their Serjeant, whom they were obliged to gratify by flying him forth to take his prey from time to time:" with all their disposition in every age of their existence, from the earliest to the latest day, down to the year 1810 (the writ of error was not brought till 1817); notwithstanding that the question was brought before a rival House of Parliament, and that rival House was thus made party to the dispute, nay the judge of its privileges in the last resort; notwithstanding all these feelings, and precedents, and principles, the other House of Parliament suffered that question to be argued, and they allowed me to take my seat every day as a Member of their body, after my assault upon their privileges, without a whisper being urged against my professional privilege when it was used in defence of my client. And this brings me to the body of the argument in the case before us; and I will begin by admitting, whoever may deny them, I am not here to deny that the real just privileges of both Houses of Parliament—for whatever belongs to one House belongs also to the other—are past all doubt. It is the privilege of Parliament—I won't say that it is to be gathered from the assertions or the assumptions of either House—but the privilege of Parliament, whoever may deny it I will not, is this—and it must ever be guarded most sacredly by Parliament, as necessary for its very existence, and much more so to enable either House to perform its duty—its privilege is to remove all obstruction to the discharge of that duty—to liberate any Member of either House respectively by the vote of that House, if he shall be constrained in his person; to inquire, and for that purpose to call all persons before them, treating such persons when called, as witnesses would be treated in all courts of justice; to examine all who shall be called before them, and if they will not answer, to commit them—if they prevaricate, whether they are examined on oath here, or not upon oath, as in the other House, to commit them for that prevarication—I will add, not for the purpose of punishing perjury, because there is a punishment awarded to that offence by the law, to be inflicted after trial and conviction; moreover, to break open repositories for the purpose of obtaining evidence, to break open outer doors, to enforce the attendance of witnesses, and to compel witnesses to attend, and when attending, to answer. All these things are clear privileges, together with the absolute freedom of speech to the Members of both Houses — which, by the by, is a statuary freedom, though by a declaratory, not an enacting law—the freedom from arrest absolutely, and from all personal constraint. All these are the privileges which I admit to be sacred, imprescriptible, inalienable, and absolutely necessary; and it is on that absolute necessity for the very existence of Parliament that I ground my clear and unhesitating admission that such privileges do by law exist. But when I am asked to go a step further, and concede to each House the power claimed by both—claimed inferentially by the other House, and insinuated by this, though clearly asserted by neither—a claim by each to have the power of determining, from time to time, what are its privileges; and from time to time, as occasion may arise, to declare what constitutes a breach of those privileges; and to inflict punishment on the parties who shall be declared to have violated them:—here I must needs pause: for this is taking into our own hands a judicial power; nay, more, it it is making ourselves lawgivers, declaring our own laws, each House for itself, and without the intervention of the other House, or of the Crown. In the second place, it is making ourselves prosecutors for a breach of the law which we have thus made for ourselves, and when we ourselves are the only parties to the act of legislation. Thirdly, it is making ourselves judges without jury, to try the offenders declared such by ourselves; so that we, ourselves, proceed by ourselves, for offences, declared by ourselves to be committed against the law made by ourselves for ourselves, and without the assent of the Crown. And, lastly, we are condemning as well as trying parties brought before ourselves, for injury done to ourselves, against a law made by ourselves; and, as if that did not fill the measure of this lawless power, as I call it, or, at all events, this irresponsible power, we take upon ourselves the execution of the sentence we ourselves pronounce upon our own judgment of condemnation 5 following our own prosecution for injury done to ourselves, against our own laws, made at our own good pleasure, by our own mere authority, for our own behoof, but which laws are never promulgated till the case has arisen, and till we make a rule to meet it. This is the final measure of the cup of power, which you call privilege, as you fill it to the brim, nay, even to overflowing; and it is against this that I most humbly, but most confidently take leave to protest; it is against this that I enter my solemn dissent, not merely on behalf of the Crown, not on behalf only of the other branches of the Legislature, but on behalf of the people of England, and on behalf of their most sacred liberties, do I enter my protest; and suffer me to add, without offence, that I enter this protest on behalf of another body—I don't mean merely the lawyers and the judges, and the law and the administration of justice in Westminster Hall, but on behalf of the highest court of law in this land—on behalf of the ultimate court of error—of that court at whose hands is sought remedy and redress from all other courts, if any wrong has been done or error committed—on your behalf, my Lords, and for your sake, who are the hereditary judges of that supreme tribunal, I protest against this anomalous, and inconsistent, and selfish, and repugnant power, which is sought to be assumed and exercised by this House — the highest tribunal of justice in this country—which ought, above all, to set an example of not violating the law, and of not erring against the eternal principles of universal justice. My Lords, you are now called upon, for the first time in the history of Parliament since I have been a Member, and I believe almost the first time in any period of your history, to interfere directly—I say, directly—and with the mere force of your own privileges, to drag a plaintiff before you, and to stop an action lawfully commenced in one of the courts of Westminster Hall, for an injury alleged to be sustained by our fellow-subject, who is a subject also of the Crown. Former privileges were of another complexion. Sir Francis Burdett brought his action against the Speaker for taking him into custody because he refused to obey the order of the House. That was a very different case from the present. Here is a case of civil right which attaches to an individual; it is a right vested in that individual; it arises out of a wrong and a grievous injury inflicted on that individual, upon a complaint in which we have been informed, for we must take the whole together, that his character has been falsely and maliciously slandered by some other person; that he has been greatly damnified by this slander; and that for this same slander he has sought redress, as by law he might, by bringing an action in a court of law against the party so injuring him, in violation of the law. What are your Lordships now called upon to do? To pronounce that the action thus brought is a breach of the privileges of this House! You have examined the party at the bar: you have been driven to an act of no ordinary magnitude; you have gone the strange, the unheard-of length, of making a party disclose what his case at law is, when, for aught that appears, except from the statement of the opposite party—for the declaration does not say that the words were spoken before the Committee—the action may have been brought for words spoken anywhere else. The party called to the bar would have had a full right to answer, "I wish to try my action before a judge and jury, and if your Lordships will allow me, I had rather not disclose my case in the presence and hearing of my opponent." How would your Lordships have liked it, if you had brought an action against a tenant or against an opposing landlord, and if, even before a plea had been pleaded and the action brought to issue, you had been compelled to declare before us, in your adversary's hearing, what you meant to do? With that, however, I have finished; upon it I will say no more. I have protested generally against it, saving for myself a full argument on the other parts of the case. You now say that it is a breach of your privileges to go on with the action. If the plaintiff threaten to proceed—nay, for aught I know, if he says, as he has said at your bar, that he does not intend to stop the action—nay, even if his attorney shall have said that he has at present no instructions to discontinue it—you will straightway vote it a breach of your privileges, and you will instantly send the client and his attorney prisoners to Newgate. That is what this House is about to do, and to do for the first time. The House so acting is in a very different position from the Commons' House on more than one remarkable point, inasmuch as the other House does not examine any man upon oath, whereas you always do; inasmuch as they have no judicial character, and you are judges in the last resort and in the highest tribunal; and inasmuch as this very action may be brought ultimately before you in your judicial character on a writ of error. Yet you, the court of the last resort, say that you will not permit the plaintiff to prosecute this action, you will not allow him to lay the foundation of his coming before you as a court of appeal. You say, "We will not permit you to go on, we will punish you if you go on with this action in an inferior court, from which, in case of error, lies an appeal to us." There is another difference. I can well understand a person consistently saying in another assembly, "We will not allow an action to be brought; we will stop it by main force, because an action brought will be referred to the Judges; from their judgment there may be an appeal, and it will at last come to the House of Lords, so that we shall commit our privileges to a rival assembly, and hand over our rights to a rival candidate for civic and judicial honours; we will not, therefore, part with our power; we will not give the staff out of our own hands; we will not leave it to the Judges to determine what they believe to be our privileges." But this does not apply to you. If you are afraid of the court below, an appeal lies to yourselves. If in that court there should be evidence admitted that ought to have been rejected, or rejected that ought to have been admitted; if the sentence be in any particular unjust or illegal; if the judge's charge to the jury be in violation of the law; if his sentence on the verdict be unjust; if in any way whatever you think you have not had justice below, a writ of error brings the case here, and then, whether you will or not, then, although you may be parties to the suit, ex necessitate, you must be the judges; and ex necessitate, you have in your own hands the power of ultimately righting yourselves, which the Commons never can have; on the contrary, if aggrieved in the courts, they must resort to you, and trust in you for redress. So far, then, as to the material points of difference between the two Houses of Parliament, with respect to stopping the action. It is said, that you cannot carry on those investigations which are essential to the proper discharge of your functions, unless your witnesses are protected. And no doubt they must have protection—they must be protected, going, stopping, and returning, from all violence and from all illegal interference. They must feel, too, that they can give their testimony without the slightest apprehension of danger to themselves, from any violence, from any unlawful act; but I am yet to learn that it is at all necessary they should be protected against the ordinary course of the law, if in giving their evidence they have committed an infraction of that law under which they do not cease to act when they enter your gates. It is said, how fruitless to examine a witness, if he is liable for the evidence he gives, to be questioned in a court of justice. But does that prevent him from speaking the truth? If you compel him to state that which slanders his neighbour, and his neighbour brings an action, provided what your witness has spoken be the truth, he must get a verdict. He, therefore, runs no risk, is liable to no danger, for the law is his protection. Only see how marvellously inconsistent is the argument, that, in order to give him protection, this House must stop the action, and commit the parties to it. A witness swears before a Committee of this House to certain facts, and swears falsely; though your Lordships do not prosecute him, he is still liable to be indicted for perjury by any two individuals who heard him give his evidence, though they should be the doorkeepers or any other attendants on your Lordships' House. Such is the end of the doctrine of protection. The protected witness is indicted for perjury;—what is the issue upon the indictment? The truth or falsehood of the thing sworn. And what is the issue here, if a justification be pleaded to the action for slander? The truth or falsehood of the thing sworn; the very self-same issue; the one being a civil case, an action for damages; the other a criminal case, a prosecution for perjury. So much for the consistency of the advocates of privilege. No man pretends to deny, or even affects to doubt, that your protected witness, who must on no account be vexed by an action for slander, may be harassed with an indictment for perjury, presented by any one who chooses to buy sixpenny-worth of parchment, and send a bill before the Grand Jury at the Westminster Session-house. But then it is said, that is not a private suit, it is a prosecution at the instance of the Crown. But the name of the Crown is used, and that is all. The real party is the private prosecutor. But, suppose it is, as this mere quibble would describe it, a Crown prosecution, and at the instance of the Attorney General himself, how does that mend the matter? Is it, indeed, come to this? Are our boasted privileges only good against the people? You have no privilege as against the Crown. Your "spear of privilege," as Sir F. Burdett called it, falls impotent from your grasp as against the Crown; but, as against the subject, as against the private plaintiff in an action, as against the people, it is omnipotent. It has been considered that the great advantage of privilege was to shield the people against the Crown; but now it turns out that it is impotent for the people and omnipotent for the Crown; that it is powerless against the Crown, and all-powerful against the subject. Then I pray you to consider a little what the consequence of all this will be. I don't mean to menace you with any formidable consequences; I speak only of logical consequences in the argument of strictly legal consequences. You commit the party and his attorney. But does that put an end to the action? Or you refuse the defendant leave to plead, can that stay the proceeding? No such thing; the action remains; the action goes on. I find that a gentleman of the bar, who is not named, gave an opinion under which this action was brought. He gave sound and lawyer-like advice; but for doing so, he is liable to be visited, as well as the plaintiff and his attorney, with the displeasure of your Lordships' House, and sent to prison. Still the action is not stayed, even for an hour. It goes on as much as before; Parliament is prorogued; another attorney is found to carry it on, unless Parliament should meet in order to incarcerate him; and even if it did, another would still be found; but if Parliament imprisoned one after another, until they had all the attorneys of the country in gaol, the action would still be in court, awaiting the decision of the Judges. You say you should not allow the party to plead, because it leads to the discussion of the case before the Judges. But suppose there is no plea, then there will be interlocutory judgment signed as of course for want of a plea; a writ of inquiry will issue also of course; the sheriff must act according to the exigency of the writ, and the damages must be assessed; and if a writ of error be brought, that will only bring the cause here, and here proceed it must, for we can hardly proceed against ourselves for breach of our own privileges. Non meus hic sermo—this is what has been stated by Mr. Justice Patteson and the Lord Chief Justice in the arguments on Howard's case. I have such high legal authority for saying that that is the law of the land, and that such will be the consequence of your proceeding. Therefore, you have but one course—face it, follow it; do all or do nothing. Don't be powerful by halves, any more than just by halves. Don't have your privileges any more than your rights by piece-meal. If you have a privilege, defend it—if you have a right, exercise it; and what does that mean?—why, that you should commit judges and jury, and at once set Parliament in irreconcilable conflict with the courts of justice. Irreconcilable, but also mortal conflict! For it will be your privileges and yourselves that will be involved in destruction! But in the tempest which you shall have so bootlessly, so recklessly, so senselessly conjured up, there will, through its turbulence, and its lowering darkness, shine forth a light to which all good men's eyes will be directed for comfort and for safety; not the lurid light of privilege which the law had extinguished, but the pure and steady light, tainted by no corrupt vapours, blown about by no factious blast, the light which the law derives from the untarnished sources when justice flows. Then we shall no longer have to perform the easy task of being both parties and judges—then we shall no longer stand upon that had eminence to which our demerits have raised us, of being the only power in the country which is itself to determine in its own favour—then we shall be no longer the only party who will not appeal to that law which is equally for the protection of all, or appeal to those Judges who administer the law equally for all. And, after all, seeing that one branch of the Legislature ever appeals to the law, no one supposes this resort either lowering to its dignity, or perilous to its rights. The Sovereign is always judged by the law, and surely his existence as part of the Constitution is at the very least as ancient as yours. I know that antiquaries have held that there was great doubt if a Parliament existed, as it is now constituted, before the period of legal memory. There was the Wittenagemot of Saxon times, and, more recently, the Colloquium, which, after the Norman Conquest, obtained the French name of Parliament, a name that abroad expressed not a legislature, but a court of justice; yet antiquaries have maintained that it was not until the period of Henry III., some years after the great charter was passed by the Barons, not by the Commons, that there was what was then called a House of Parliament. Be that as it may, for I disdain to inquire into such trifles, there was, at all events, a King. No one doubts that. If the Houses of Lords and Commons existed not, there was a Crown, and although the ancient Executive Government of the country possessed much influence and great power, yet I do not find that the Sovereign then ever arrogated to himself anything like the privilege which you pretend to. So it was under the Plantagenets, and afterwards under the Tudors and the Stuarts. So it is to this day. If a subject has been encroached upon by the Crown, the subject goes before the Judges, who administer the law, and the Sovereign meets him without any pretence of a privilege to supersede the law. If a wrong is committed against the Crown, the Crown prosecutes, by its law officers, and abides the decision of the Judges of the land. Then why should not Parliament deem itself as safe with respect to the rights and privileges it claims in going before the Judges as the Crown does, which never dreamed, from the beginning of the time when it exercised any privilege, of adopting any other course than that of going like a subject before the Judges! The Crown is constantly in the habit of issuing Commissions before which witnesses were examined, who require protection as much as those coming before Committees of this House; indeed, Committee and Commission are convertible terms. If, as before a Committee, a witness examined by a Crown Commission should slander his neighbour, and in doing so perjure himself, that neighbour may indict him for perjury, or bring an action for reparation in damages: and I should like to know whether there ever existed an Attorney General, not excepting Noy, nay, supposing Noy to have been Attorney General when Jefferies was Chief Justice, he never would have dreamed of saying in such a case, as is said in this, "Unless our witnesses are protected we cannot carry on our inquiry, and instead of going before the Judges we call upon you, the Sovereign, to proceed upon the privilege which is vested in you, and commit those persons who have dared to bring this action against a witness examined by your Royal Commission." No man was ever insane enough to give such advice even in those days when the prerogative of the Crown was exercised in its strongest and most oppressive form. Protect your witnesses, we hear it said; this is the whole end and object of the present ill-omened proceedings. I too say, protect your witnesses; but protect them lawfully—protect them as all courts protect theirs. No power can stop an action brought against a witness in any of the courts, and yet it is quite as necessary to protect witnesses in other courts as in this House. We hear it currently said, that privilege is the protection of Parliament against the Crown; and it arose, certainly, in times very unlike the present, when the Sovereign and the Commons were in habitual conflict. But now the Crown and both the Houses are ranged as regularly on the same side of every question. If Pym, and Hampden, and Coke, the leaders of the Commons—for the claims began at first with the leaders of the popular party in the House of Commons—if these illustrious patriots had lived to see the time when there is no longer any apprehension of the Crown; when the Crown and the Ministers, and both Houses of Parliament, all understand each other, and work together so harmoniously; when the only possible cases of privilege must be, not against the Crown, but for the Crown—for Parliament and the Crown in this particular, have become one and the same—we should not have heard the Cokes, and the Pyms, and the Hampdens asserting these claims. The stern voice of prerogative, it has been well said, has now given place to the soft whisper of influence, and all privilege of Parliament insures to the use of the Crown. But admit that Parliament, as against the Crown, might have recourse to these high privileges, I may remind your Lordships of the excess to which the Commons carried their success in the year 1641, when they established the claim. In that year the Commons clothed themselves with the power of seizure and committal—the next year, 1642, an order was issued by the single House of Parliament, without the Crown's consent, without the consent of the House of Lords, for marshalling the trained bands; another order was issued for raising two troops of horse, to defend the Parliament, to protect its privileges; and a third order was issued to levy money for the sake of protecting those claims of privilege which were made by the Commons themselves. But the trained bands and the troops of horse were used not only to protect the privileges of the House, they were used to put down the Lords, to imprison the King, and to overthrow the monarchy by destroying the King's person; the votes of money were to afford the sinews of war, in order to secure privileges which the House grasped at in defiance of all the privileges and all the rights of the Crown. Nor is it unfruitful to the present purpose when we are asserting our privilege on the ground of former precedents, that is, of former acts done by our own House, that we should recollect what kind of things those precedents would justify. If I were to read to your Lordships all the privileges which you have still existing in your Journals and your Standing Orders, some of you would start to hear them recited. I shall not go back to the time when, I find that an honest gentleman from the Principality of Wales, in the reign of James I., of learned as well as high prerogative memory, for presuming to say that the King's son-in-law, the Elector Palatine, was "good man Palsgrave," and that his daughter, the Princess Elizabeth, married to the Elector, was "good wife Palsgrave," was sentenced without trial to be carried on a horse from Cornhill to Charing-cross, with his head to the tail of the animal; to be placed twice in the pillory; to be fined 5,000l., and to be imprisoned in Newgate for life. But I will go to more recent times. After the Revolution of 1688 and 1689, you made Resolutions, in the shape of Standing Orders, that the servants of Members of Parliament of both Houses should have the same privilege of exemption from action and arrest which their masters had. Another Standing Order, never repealed or modified, is that no person shall touch the goods or chattels of a Member of this or the other House of Parliament, taken in execution; they are all to be given up to the owner, the privileged debtor. Then there is an order of this sort: lives of living Peers may be written; but there is an Order, made 7th George I., declaring it to be a high breach of the privileges of this House in any man to presume to write the life of a deceased Peer, without leave of his heirs, executors, or administrators; and I recommend this Order to the attention of my noble and learned Friend, who is understood to be writing the lives of Lord Chancellors, and who is a mighty stickler for our privileges on the present occasion. There are other privileges which I might mention, and which show how inconsistent we are towards the public, and how little we enable the people whom we punish for offending, to know what law of privilege they may safely break, and what law they must obey. The Orders of this House prohibit the bringing an action or suing out any process against any of its officers as well as against any Peer. I would recommend your Lordships to consider with yourselves, necessary as it is, that we should be protected against the Crown, whether we should not have as good protection from the law of the land in its ordinary exercise, as from any privileges, that is, any power, we can exercise. Suppose the Crown to be against you, now, when in the words of the great writer I have already quoted, "the stern voice of prerogative has yielded to the milder whisper of influence, and the blandishment of authority has supplied the place of power." The advocates of privilege say this power is absolutely necessary. What will you do with the Crown against you? My answer is, you will do better with the Judges, as against the Crown, than with your own privileges as against both. If the Crown is against you, I defy you to carry your high privileges against it. There is a Standing Order on your Journals, which is never executed, giving your Lordships the power of directing all constables and justices (that is, magistrates), to do what you please in suppressing riots in the vicinity of the House, and in keeping the streets clear. Suppose there is a riot, and suppose the justices, who are the King's justices, not yours, decline to obey. Or suppose you find you cannot, though willing, suppress the riot, with the assistance of all the constables in Westminster and all the justices in Middlesex, what will you do? You say, indeed, "justices and others," and others comprises commanders of the forces. Will you send a message to my noble Friend (the Duke of Wellington) and to the Horse Guards? If you send to my noble Friend a petition or a suggestion," he may think it right to send some troops to suppress the mob; but I do not so clearly foresee what he would do if you sent an order. He would know very well that the troops are not the troops of your Lordships, or of the other House of Parliament; and he would further know that he is not your servant, but the Sovereign's. My noble Friend knows that it was in the interference of the Parliament with the army, which belonged to the Crown, that the great rebellion had its origin; and he would be the last man to follow such an example, or help you to follow it. But happen what may—come the assault on us from what quarter it may—I think it most clear, my Lords, that we need have no fear from the Judges of the land; they are, amongst all men, and all bodies of men, the first to show a respect to this House; and they will be the last to shrink from supporting your privileges when the acts of your servants or officers are discussed in courts of justice. Let us ever bear in mind the respect due to the law, of which we are the highest depositaries; ever be ready by the law to have all our rights decided, by its oracles all our claims adjudged. To the courts where it is purely and calmly admitted, let us all willingly resort for justice, and never lose sight of the good maxim, that in keeping together the great social pyramid of England, its strength resides not in the apex of the Crown, not in the region of the people, not in the broad low base of the multitude, but in that middle region in which justice is administered according to law by lawyers; and above all, by lawyers who are no politicians. It is because they are chosen out and set apart as a peculiar people, zealous of good works of justice—it is because politics never cross the threshold of their courts, or interrupt the calm and equable tenor of their way—it is therefore that your Lordships ought to rely with confidence on the protection which your privileges will receive at the hands of those who administer justice in our tribunals.

The Lord Chancellor

said, that he quite agreed with his noble and learned Friend, in considering that this question was one of very great importance; but before he addressed himself more immediately to the question itself, he wished to point out to their Lordships the situation in which he stood with respect to it. A noble Duke (the Duke of Richmond) presented a petition from a party, complaining that an action had been brought against him in consequence of evidence given by him before a Committee of their Lordships' House. It was their Lordships' pleasure that the question should be investigated, and a Select Committee was appointed to inquire and search for precedents; and he (the Lord Chancellor) felt it to be his duty, in consequence of that preliminary step, to bring forward the Motion which had given rise to the present discussion. In the position which he occupied in their Lordships' House, and in the character with which he was clothed, he now stood forward to lay before their Lordships, plainly and shortly, without adverting to any inflammatory topics, what was the real position of this question, what was the nature of it, and what the authorities upon which it rested, in order to enable their Lordships to come to a decision, and, after they had duly considered this important question, to pronounce what course they ought to pursue. His noble and learned Friend had referred to several precedents, which were, he (the Lord Chancellor) admitted, of a very absurd and extravagant kind. Undoubtedly both their Lordships' House and the House of Commons had, under the show of supporting their privileges, conducted themselves, upon more than one occasion, in a very arbitrary and tyrannical manner. The Sovereigns of this country, at different periods, had also abused their power and authority; and their Lordships would give him leave to add, that the people themselves, when, by accidental circumstances, clothed with authority, had in more than one instance exercised that authority in an arbitrary, tyrannical, and despotic manner. But these were not the questions for consideration at present. The question was, whether, under the circumstances of this case, they ought to interfere by interposing their authority to stop proceedings against this individual. The first thing to consider was, what were the circumstances and facts of the case? This witness was summoned before a Select Committee appointed to inquire into the Law of Gaming, and the state of that law at this moment. He was compelled to attend by their Lordships' summons, and to answer the questions put to him. There was no pretence to say, as far as appeared at present, that those answers were not fairly and honestly given. The proceedings of the Select Committee were not open to the public; but in consequence of the evidence, some way or the other, having been made public, this action was brought against the witness. His noble and learned Friend seemed to doubt whether there was sufficient evidence in what had been stated at the bar to-day to show that the action was brought to recover damages in consequence of the evidence given before the Committee. That question was investigated by the Committee appointed to search for precedents; and every Member of that Committee was satisfied that the action was brought to recover damages on account of the evidence so given, and on account of that evidence alone. They had the declaration before them; they compared that declaration with the evidence given before the Committee. It corresponded in every word; it corresponded in questions, and it corresponded in answers. It did not consist of one or two phrases, but of a long succession of testimony, consisting of questions and answers so as to render it impossible for any man to doubt that the action was brought upon the evidence so given before their Lordships' Committee. He apprehended that it was not necessary to call the parties to their Lordships' bar, except for the purpose of giving them an opportunity to explain their motives, and set themselves right before their Lordships. The parties had not thought proper to adopt that course; therefore it was that he (the Lord Chancellor) made a Motion that the parties had been guilty of a breach of their Lordships' privileges, in order that when their Lordships should have received everything that could be advanced upon the subject, they might come to a decision upon that point. It had been said, and very correctly said, both now and on former occasions, that no action of this kind could be maintained in the courts of Westminster Hall; that when the plaintiff got into court, he must be nonsuited as a matter of course; and therefore his noble and learned Friend (Lord Brougham) suggested how unnecessary it was for their Lordships to adopt these proceedings, and how unwise it was not to allow the law to take its course. The answer he (the Lord Chancellor) would give to this was short and simple. Here was a witness compelled to give evidence; an action was brought against him; he (the Lord Chancellor) would assume, that when the action was brought, into court, it must naturally fail, and he would assume that the plaintiff would have to pay the costs of the defendant. But every one acquainted with the administration of justice, and of the course of proceeding in the courts of law, knew that, notwithstanding the verdict or judgment was in the plaintiff's favour, and notwithstanding he might be entitled to recover costs from his opponent, yet the consequence might be, that he would still have to pay a considerable amount of costs out of his own pocket. He would be entitled only to what were termed taxed costs, and those taxed costs fall very short, in the course of the administration of justice, of the real costs the party is put to; so that this individual, who had been compelled to come before the Committee to give evidence, was to be dragged into a court of justice in a case in which it was admitted he must succeed, and after going through all this disagreeable proceeding, he must be saddled with costs, it might be to a large amount. But this was only part of the case. Everybody who knew anything about the administration of justice, knew how many accidents there were liable to happen in the progress of a cause. His noble and learned Friend had said that the party must plead to the action. Allow that he did; if he made any slip in that pleading, the consequence would be, that he would have judgment against him, and the whole costs of the suit must be defrayed out of his own pocket. So that their Lordships had not only to consider that this was a case in which, if the cause were tried, the defendant must necessarily be succesful; but that it was one in which he would possibly, even in that case, have to pay extra costs; and further, it was a case in which he was exposed to the risk of some slip or error being committed in the course of the pleadings, and in consequence of which he might not only have to pay all his own costs, but the costs of the party who had dragged him into court. Was it not of importance to protect a witness who was placed in such a situation? What could be of more importance to their Lordships, in the exercise of their important powers as legislators, than to appoint a Committee to inquire into facts, to serve as the foundation of their legislation? It was their Lordships' constant practice to inform themselves by a Select Committee of those facts necessary in order to guide them in their proceedings. How important was it that they should secure the first and great duty of a witness—to speak the truth; to do which he ought to be unfettered: but if the witnesses called to give evidence before their Committees knew that they were subject to an action for what they stated, what practically must be, in the long run, the result? Why, most surely this—that they would only answer those questions which they felt themselves obliged to answer, and would withhold everything they were not obliged to disclose: whereas the interest of good legislation was, that everybody called as a witness before a Select Committee should answer fully and freely, and, to the extent of his knowledge, disclose all he knew for the benefit of their Lordships and the country, as a guide to their legislative proceedings. His noble and learned Friend seemed to consider it most extraordinary that they should interfere for the purpose of stopping a suit in a court of justice. It did appear to him (the Lord Chancellor) very whimsical, considering the station of his noble and learned Friend, his eminent attainments, and the fact that he had himself presided at the head of the Court of Chancery, that he should have urged an argument of that description. Why, it was the everyday practice in the Court of Chancery to interfere for this purpose. If any action was brought against an officer of the Court of Chancery, in the performance of his duty, for anything done by him under the direction of the Court, does the Court of Chancery allow a court of law to take cognizance of the matter? No; the course was, for the parties so proceeded against to apply to the Court, and the Court immediately proceeded to stop the suit—an injunction was immediately issued; and if the party dared to proceed after an order had been given to discontinue the suit, he was immediately put in prison, and remained in custody until he conformed to the authority of the Court. But his noble and learned Friend said that if the party were taken into custody, the action might still proceed. Was that the case? By no means. The moment the Court interposed the action ceased; and if either of the parties, solicitor or plaintiff, disobeyed the injunction, both were put into prison. The action could not go on without agents. The action slept, as a matter of course, until somebody undertook to carry it on; and if any other person did so interpose to carry it on, then another step would be taken, and he would be proceeded against, and the same consequences would follow. This was analogous to the course their Lordships were now pursuing, and which was now under their Lordships' consideration. If the parties were, by their Lordships' order, which was now prayed for, ordered not to proceed further, and if they nevertheless did proceed, they would be committed for contempt. They might be so committed in the first instance, for having instituted the action. If any other parties took up the action, the same consequences would fall upon them. This proceeding of the Court of Chancery was not confined to the officers of the Court, but extended to any one not regularly an officer, who acted under the authority of that Court. Whenever an action was brought against a receiver appointed by the Court for anything done by him in his character of receiver, the instant an injunction was prayed for it was issued; and if not obeyed, the party was immediately committed. The same case applied to Commissioners of Revenue. Then his noble and learned Friend asked, what were they to do next if the parties persisted? Let the parties try whether their Lordships would do anything. The Court of Chancery always knew what to do; and what did the Courts of Common Law do? They allowed the authority of the Court of Equity, and so would those courts of law allow this authority which was about to be exercised by their Lordships. Then his noble and learned Friend supposed that there would arise some conflict of jurisdiction between the House of Lords and the courts of law; but there was no occasion for any such conflict. All that their Lordships had to do was, to commit the party for contempt; and if any attempt were made by the party to bring the case before the courts of law, those courts would acknowledge the privilege of their Lordships' House under which the committal was made, and would immediately refuse to interfere. It was possible that some warrant might issue, and that there might be some defect in it; and that the Court of Queen's Bench might, on account of that defect, interpose and run counter to their Lordships' authority and to their jurisdiction; but the Court would not run counter to their Lordships on principle. Lord Denman said, in the late case in the Court of Queen's Bench, that the Court was bound to respect the privileges of Parliament, and that the Judges had no right to inquire into the authority of the House of Commons; every court and both Houses of Parliament were the guardians of their own privileges. If there were entered upon the record the allegation of privilege, and if there were no defect in the warrant, in that case the court would not interpose. What did Lord Denman say? He said, that there had been an excess—not an excess of authority in issuing the warrant—but that the officer had done what the warrant did not justify. Their Lordships need not be afraid that the courts of justice would interfere with their privileges; becaus it was one main principle of the courts of law, that the privileges of the two Houses of Parliament were to be respected, and that the courts could not call them in question. His noble and learned Friend (Lord Brougham) had said, that the privileges of the two Houses of Parliament were identical. He (the Lord Chancellor) admitted that his noble and learned Friend was perfectly correct in that proposition. But what did the House of Commons do the other day? They were precisely in the same condition as that in which their Lordships were. They had interfered to prevent a party proceeding against a person who had been examined before a Committee of that House; and the only reason why the House of Commons had not proceeded was, that the parties had submitted to the authority of the House, and the action was discontinued. But if their Lordships went upon precedents, there was the case of Biggs, which occurred in 1763. A justice of peace, by the order of their Lordships' House, dispersed a mob that had collected around the House and disturbed their Lordships' proceedings: he seized an individual and carried him before the Lord Mayor; an action was brought against the magistrate for false imprisonment; that gentleman brought his case before their Lordships; the plaintiff and his attorney were summoned before the House; the plaintiff submitted to their Lordships' authority, whereupon he was discharged; but the solicitor choosing to persevere in the action, he was committed to Newgate; but after having been confined nine or ten days, he also submitted to the authority of the House; he was then brought to the bar, reprimanded, and discharged. It was much the same in what was called the Umbrella Case. A good deal of ridicule had been thrown upon that case on account, he believed, of the absurdity of its name; but it was perfectly the same case as the rest in point of principle. It was an Order of the House, that no person should be allowed to appear below the bar with a stick or umbrella. A person came with an umbrella. The messenger removed it to its proper place. The party brought an action in an inferior court, and the House protected the messenger. Why? Because what the officer did was done in the discharge of his duty. All the cases went to show that the authority now claimed to be exercised had been exercised in former times, and had always been considered an essential privilege of this House; and that, whenever called in question, it was necessary that their Lordships should assert their privileges, otherwise they might by some be considered abandoned, and thereby they would be lost. His noble and learned Friend seemed to consider that their Lordships should only interfere when there occurred some direct obstruction to their Lordships' proceedings. That was not the principle upon which Parliament or the courts of law had proceeded. They had proceeded upon quite a different principle. If anybody libelled a court of justice with respect to any past matter, what was the course pursued? The court committed the party for contempt. He could cite the authority of Lord Hardwicke in support of that proposition, that any libel upon a court of justice subjected the parties to committal for contempt. The same was said by Chief Justice Willes, in the case of a prosecution against Hamilton, a publisher; he said, that although it was not a direct obstruction, yet it was a contempt, and the party must be committed. The other House of Parliament laid down the same doctrine as was established by the courts of justice, by the King's Bench, and afterwards by the Exchequer Chamber, on a writ of error being brought in the case of Sir Francis Burdett, and, indeed, in every other case. There was no direct obstruction to the House of Commons in the Burdett case. It was a publication by Sir Francis Burdett, which was considered to be a libel by the House, and, therefore, a breach of its privileges. When the case came before the King's Bench, they expressed the same opinion, and it was afterwards ratified and confirmed by the Exchequer Chamber. There appeared to him (the Lord Chancellor) no foundation whatever for the distinction which his noble and learned Friend had drawn, that there must be a direct obstruction to the proceedings of their Lordships' House, in order to justify their interposition, and in order to consider whether their privileges had been violated. Constructively, he considered anything which brought disrespect upon their Lordships' House, or which checked their proceedings in any way, was a breach of the privileges of the House, and called upon their Lordships to interfere. He had now stated this case to their Lordships as shortly and clearly as the circumstance would admit. He had stated the facts out of which it had arisen, and what the consequences would be if their Lordships allowed a witness examined before their own Committee to be proceeded against, with a view to have his evidence called in question in a court of justice. He had shown their Lordships that the courts of law acted upon the same principle to prevent parties from proceedings in such actions; and he had referred also to precedents which would justify their Lordships in interfering in the present case. He had done this in order that their Lordships might have the power to take the whole of the circumstances into consideration before they came to any determination upon the subject.

Lord Brougham

explained, that he had not meant to deny that by precedents their Lordships had the power. All the drift of his argument went to deny the expediency of the House ever interfering except to stop positive obstruction. With respect to the analogy of the Court of Chancery granting an injunction, as quoted by his noble and learned Friend on the Woolsack, that had no bearing upon the present question. The reason the Court of Chancery stopped proceedings was, because the case tried was in that court, which would not allow another court to interfere with its jurisdiction. And why? Because the Court of Chancery would itself do justice and give redress. If the House would say that they would give this party redress without going before a jury, that would be a different case altogether.

The Lord Chancellor

The party might come to the House and complain; and if the House was satisfied there was good ground for complaint, it would be competent for their Lordships to give him leave to proceed. In Chancery the case was referred to a master.

Lord Campbell

said: It had been said that great unpopularity would attach to any proceedings which their Lordships might think proper to take in the maintenance of their privileges. Of that unpopularity he was ready to take his share; for he had no hesitation in declaring it to be his firm belief, that a firm and constitutional course in the vindication of the privileges of Parliament was most certain ultimately to turn to the benefit of the people. His noble and learned Friend who first addressed their Lordships was extremely eloquent in defence of the course which he advised their Lordships to take; but his arguments did not touch the real question at issue; they seemed rather to be directed towards the great object of bringing their Lordships' privilege into disrepute. The House should bear in mind, and the public ought to be aware, that their Lordships had no personal interest at all in the power they were now asserting. It was not for immunity, or for personal distinction or advantage, that they were contending. It appeared to him an incontrovertible fact, that if the privilege of Parliament was not productive of beneficial results, it could not, for a moment, be supported or prolonged. He thought he was able to show to their Lordships that the maintenance of those privileges which that House had so long enjoyed was, and had been, productive of good to the community at large. His noble and learned Friend had, he thought, somewhat unfairly referred to what had been done in former ages; but if he would examine Floyde's case, to which he had referred, he would find that it was not a case of privilege, but a case of prosecution before the House of Lords, as a court of justice, for a misdemeanor, where the party arraigned was heard, was found guilty, and received sentence. The House of Commons at first wished to establish their own power as a court of record; but their Lordships asserted their privilege as a constitutional tribunal: they tried the case, decided it, and passed the sentence that was required: the House of Commons consenting to leave the case in their hands, under a protest, leaving "the rights and privileges of both Houses in the same state and plight as before."^* His noble Friend, in commenting upon privilege, had observed that the same rights and privileges were claimed for the goods and servants of Members of Parliament. Now in former times that privilege was indispensable, and therefore ^* Howell's State Trials, vol. ii. p. 1154. was exercised; but since it had become unnecessary, Parliament had voluntarily renounced it. In former times Parliament seldom sat above a few days. In the days of the Plantagenets Parliament met more than once a year, but only for a few days at a time, at Christmas, Easter, and Pentecost. They were summoned to meet at distant places, at York, Winchester, or Westminster: the Members of Parliament had this privilege, and regard being had to the manners and customs of those ages, unless the same privilege extended to the horse a Member rode, and to the servant who attended him, it would have been impossible for either Peers or Commoners to discharge their duties as Members of Parliament. But now no such privilege, in respect to the goods of a Member of Parliament had been claimed or exercised for 200 years; and with respect to the servants of Members, both Houses had unanimously agreed, by an Act passed, he believed, in the 10th year of George III., that that privilege, being no longer necessary, should be abandoned. So that in former times even there had not been that abuse of privilege such as his noble and learned Friend had described. But then his noble and learned Friend would have their Lordships confine the summary exercise of their jurisdiction to cases where there was physically an obstruction to their proceedings. But was that the principle acted upon by the two Houses of Parliament, or by the courts of law? Suppose, after a case had been determined in Chancery, and judgment had been pronounced, the losing party should say that the Lord Chancellor had received a bribe, and had acted corruptly in pronouncing sentence; or suppose that he, this losing party, were to publish a libel, stating that his antagonist had committed perjury, or had suborned witnesses—would not either of these cases obstruct the administration of justice just as much as would an insult offered in the very face of the court? But upon that subject he (Lord Campbell) would refer their Lordships to the emphatic language of one of the greatest Judges who had ever adorned the Bench, he meant Lord Ellenborough, in a case where the same doctrine was contended for, that it was only in cases of positive obstruction that the two Houses of Parliament had a right to interfere. That noble and learned Lord asserted the privileges of Parliament to be necessarily independent, as requisite for the personal security of Members, and also as involving the right of self-protection. Lord Ellenborough said— I do not mean merely the power of resisting acts and wrongs committed against itself, for poor and mean would that Parliament be which did not possess the power of resisting affronts, or of resenting injuries that might be offered to it. This is an inherent right in Parliament. The right of self-protection necessarily implies the possession of means to render that self-protection real and efficient; but such privilege would not be sufficient to effect the object for which it was granted, if it did not extend to the power of punishing insult when offered. Can the Parliament, therefore—can either of the two Houses of Legislature, be so utterly devoid of the means of enforcing their own dignity, as not to be able to punish in a summary manner a contempt that can be reached at once by the courts of law, which possess much less dignity? That was the opinion of Lord Ellenborough. He (Lord Campbell) had now to draw the attention of the House to the fact, that lately the Judicial Committee of the Privy Council, that institution of which his noble and learned Friend near him had so much just reason to be proud, had determined that this power belonged, as of inherent right, to the Legislature of every Colony under the Crown. In a recent case they had held that the sitting power belonged to the House of Assembly of Jamaica, and had decided that the power of committing for contempt inherent in every assembly possessing legislative authority, whether the proceedings stayed tended indirectly to obstruct, or directly to bring their authority into contempt. That had been decided by the Supreme Court of Appeal from the Colonies. But then his noble and learned Friend had gone so far as without qualification to say, that their Lordships ought to submit any case in which their privileges were called in question to the decision of the Judges, so that if an action were brought against his noble and learned Friend himself, for anything he had said in his place in the House of Peers, their Lordships ought not to interfere, but allow the case to be submitted to a judge and jury. He (Lord Campbell) protested against that doctrine; for he was persuaded that neither this nor the other House could effectively fulfil their legislative functions if it were suffered to prevail. His noble and learned Friend on the Woolsack had shown that the two Houses of Parliament were the sole judges of their own privileges. The Constitution placed that confidence in them, and believed that it would not be abused, and that they would only declare and preserve those privileges which their ancestors possessed—that they would not seek to enlarge them, or to raise up new ones. Trust to the Judges, said his noble and learned Friend (Lord Brougham). He (Lord Campbell) had the greatest respect for his noble and learned Friend who spoke the other evening upon this subject (Lord Denman), whose absence on this occasion he much regretted; but he could not consent to make him arbitrator of all their Lordships' privileges. He had, he repeated, a high respect for him; but he had a still higher respect for the aggregate wisdom of the House of Lords, and for the aggregate wisdom of the House of Commons upon such questions. But this question of privilege might come not before Lord Denman, but before some most respectable puisne Judge who had never sat in Parliament; who knew nothing of Parliamentary law, of Parliamentary custom, and to whom privilege would be altogether new and strange. It might happen that their Lordships' privileges would have to be pronounced upon by a man who had passed his life in drawing pleas, declarations, and demurrers, and not only that, it was by no means improbable, in case his noble and learned Friend's doctrine were suffered to prevail, that the question of privilege might be brought before some inferior tribunal, before a county court or a borough court. Their privileges, then, might come to be decided by the sheriff, or the under-sheriff, or by a clerk in the under-sheriff's office. His noble and learned Friend had drawn a distinction between their Lordships and the other House of Parliament, and had said that the remedy was in their Lordships' hands, because the case might come before them by a writ of error. No man knew better than his noble and learned Friend that many circumstances might intervene and prevent such an appeal from being made, by some of those irregularities which often rendered it impossible to get a case placed upon the record, and consequently it would never get before a Court of Error. "And then another difficulty arises—What do the Judges of Westminster Hall know of your Lordships' privilege; how can they tell in what they consist, and wherein we exceed or fall short in asserting them? They are not described in any of their books; they are not, many of them, to be found even in the Journals of either House; they are recognised as of usage only, and are transmitted down by each House of Legislature to their successor. Suppose the Judges were not distinguished by that impartiality which happily characterizes the occupants of the modern Bench. It would be a very perilous matter to trust our privileges to a tribunal such as might sit on the judgment seat. Your Lordships must also look to the danger of having Judges who are seekers after popularity. Lord Bacon somewhere says, 'A popular Judge is a deformed thing, and the plaudits of the people are fitter for mountebank players than for magistrates.' There have been, I need hardly remind your Lordships, periods when both this House and the other House of Parliament have become extremely unpopular; and under such circumstances it might happen that insuperable difficulties would be found, in case your privileges came before the courts of law, in getting a judge or a jury to give a decision favourable to them, be the justice of the case never so obvious." His noble and learned Friend, in referring to the case of Burdett v. Abbott, said that he had stood in great peril of being committed because he appeared of counsel for Sir Francis Burdett. But his noble and learned Friend was in no such peril, because the House of Commons had given leave to the defendant to plead; and, instead of stopping the action, had allowed it to proceed. Under the peculiar circumstances of that case the House of Commons thought, whether wisely or unwisely, that it was right to wave their privileges, and to let the action against their Speaker proceed, rather than stop it short by any exercise of authority. But he would now quote to their Lordships a few instances of the conduct of Judges in cases of privilege; and although they knew what the present race of Judges were, they knew not what those might be who should follow them; and it should be observed that the Judges who now sat on the Bench were to lay down precedents for the future. It was once referred to the Judges, whether during the Session of Parliament the King had not a right to prescribe what business should come before Parliament, and in what order it should be taken. The Judges, unâ voce, declared that such was the right of the Crown, and that any member acting differently would be guilty of high treason. This took place in the reign of Richard the Second; and the Chief Justice, Sir R. Tresilian, was afterwards most deservedly hanged. The same Chief Justice was also asked whether the House of Commons had any right to impeach the King's Ministers; and he answered that those who impeached any of the King's Ministers in Parliament were to be punished as traitors. But he would now give a specimen of what was done in the seven-teeth century, in the reign of Charles I. In 1628, there was a Parliament in which an ancestor of the noble Earl sitting opposite (the Earl of St. Germans), one of the most illustrious men that ever adorned the House of Commons, who, together with Selden and Stroud, and he (Lord Campbell) believed with Pym, requested the Speaker to put a question in the House of Commons. The Speaker refused, because, he said, "he was commanded otherwise by the King." The Members insisted, but the question was not put. As soon as that Parliament was dissolved, Sir John Elliot, and Pym, with Stroud and other Members, were arrested, and the Attorney General filed a criminal information in the King's Bench, and as a preliminary he summoned all the Judges; a proceeding not uncommon in those days, to summon the Judges in order to commit them to an opinion, so that they could not afterwards give judgment contrary to the side of the Government. So the Attorney General, when this prosecution was instituted, summoned all the Judges, and put the question, "Whether a Parliament man, committing an offence against the King or Council, not in a Parliament way, might, after the Parliament ended, be punished or not?" All the Judges, unâ voce, answered, "he might, if he be not punished for it in Parliament; for the Parliament shall not give privilege to any, contra morem Parliamentarium, to exceed the bounds and limits of his place and duty;" and all agreed "that, regularly, he cannot be compelled out of Parliament to answer things done in Parliament in a Parliamentary course; but it is otherwise when things are done exorbitantly, for those are not the acts of a court." So according to this answer the Judges were to consider whether the act was done in "a Parliament way," and if not they were to hold the party liable, and might convict and fine him for the words spoken. After this the prosecution proceeded. Sir John Elliot and the others pleaded to the information of the Attorney General that what they had said was in Parliament. To this a demurrer was put in and the question was argued. The Chief Justice said, "All the Judges in England have resolved, with one voice, that an offence committed in Parliament criminally and contemptuously, the Parliament being ended, rests punishable in another court." Mr. Justice Jones: "And what court shall that he but the Court of King's Bench, in which the King by intendment sitteth?" Mr. Justice Whitelock added, "That any offence committed in Parliament against the King or his Government may be punished out of Parliament." To this Mr. Justice Crooke added the opinion, that "not only criminal actions committed in Parliament are punishable here, but words also." So, by the judgment of one of these Judges it appeared that any attack upon the Minister of the day, or any hint of a suspicion that the Government had not acted with perfect wisdom or honesty, if spoken in Parliament, was to be subject to a prosecution in the courts of law. The result of the prosecution was, that five members were found guilty and sentenced; and Sir John Elliot was ordered to pay a fine of 2,000l. ^* The noble Lord opposite would, no doubt, find among his muniments the receipt for the fine paid by his ancestor, and which might be regarded as one of the brightest jewels in the coronet of his descendant. Even in the seventeenth century, however, this prosecution and judgment were deemed so outrageous, that the judgment was reversed; and the Judges held that no words spoken in Parliament should be punishable. The defendants in the case he had quoted relied upon a Statute passed in the reign of Henry VIII.; which enacted that no Member should be called in question for any Bill or speaking in Parliament. That plea was, however, as he had shown, overruled, and the parties were fined; the Judges holding, in spite of that Act, that they had cognizance of what was said and done in either House of Parliament. Another case following this was Rex v. Williams, which was an information by Sir R. Sawyer, then Attorney General, against Sir W. Williams, Speaker of the House of Commons, for, under order of the House, publishing and putting his name to a book called "Dangerfield's Narrative." The plea put in was, that the defendant had done so by order of the House; but that plea was overruled, the Lord Chief Justice declaring it to be an idle, insignificant plea; and Sir William Williams was ^* See Parl. History, Vol. ii. 490, et seqq. fined 10,000l., of which he actually paid 8,000l. These were all cases which had occurred within a recent time; and although the present Judges were worthy of all confidence, he for one would never consent to the privileges of Parliament, which were held for the good of the public, being put in jeopardy by being submitted to them. In the practice of the courts of law, if an action was brought in one court to call in question what had been done in another, the court of exclusive jurisdiction uniformly interfered. For example, in the Court of Exchequer, where an action was brought in another court for what had been done by order of the Exchequer respecting the King's revenue, they would not suffer the action to proceed; as was seen in the case of Campbell v. Cawthorne, before Lord Chief Baron Macdonald. Lord Chief Baron Eyre followed the same precedent. When he (Lord Campbell) was Attorney General, he had often gone into the Court of Exchequer, and moved that proceedings be stayed in other courts upon matters over which the Exchequer had a fixed jurisdiction. Then what said the Court of Common Pleas? A learned Serjeant was arrested when leaving Westminster Hall and getting into his coach. He applied to the Court, and they discharged him, intimating that if the plaintiff should bring an action against the Sheriff for an escape, they would commit him. That Serjeant was Scroggs, afterwards the celebrated Judge Scroggs. In the Court of Chancery, as their Lordships had heard from his noble and learned Friend on the Woolsack, the practice had been uniform. There were cases in point so far back as Vernon's Reports down to those decided by Lord Eldon, and by his noble and learned Friend on the Woolsack. The Court would not allow an action to be brought against a receiver appointed by and acting under the orders of the Court, as was seen in the case of Angel v. Smith, 9 Vesey, 333; and so also the Court of Chancery would not suffer the regularity of its process to be decided upon by any other tribunal, even when there was a complaint that its officers had exceeded their authority. In Frowd v. Laurence, I Milne and Kean, Lord Eldon granted an injunction against an action, and so in the case ex-parte Clarke, decided by his noble and learned Friend on the Woolsack. Now, he (Lord Campbell) contended that this was as much the law of that Court as of the Court of Chancery, or the Court of Exchequer; and the practice had been immemorially exercised. There were precedents for its exercise. They might be few in number, because few such actions had been brought. It was only in these speculative times that attorneys ventured to take such proceedings. He had considered it his duty thus to lay before their Lordships the result of his researches. He was convinced that the House not only had the power, but that they were bound to exercise it for the public good; and that if they allowed these actions to proceed, not only their dignity, but their usefulness, would be impaired.

The Earl of Wicklow

thought, if their Lordships proceeded in their present course, serious and lamentable injustice might be inflicted. He did not deny that this was a breach of privilege; when he said that, he meant a breach growing out of a disregard of their privileges. It was a breach of privilege, as stated by his noble and learned Friend, to have their proceedings reported at all, or that the minutes of evidence taken before a Select Committee of their Lordships, and furnished to the Members of the Committee, should be made public. He believed, that up to a late period, if an individual Peer sitting on a Committee, to whom the evidence taken before it had been furnished, had chosen to circulate it himself, an action might have been brought against him, and he would not have escaped with impunity. By communicating to the House of Commons the Papers drawn up for their own use, their Lordships gave a kind of sanction to the making public and selling of these Papers. In the present case an individual who complained that he had sustained great injury to his character, applied to the laws for protection; their Lordships interfered, and would not allow him to obtain that justice which the laws might possibly afford him. It might be said that the courts were bound to respect their privileges; and, therefore, that the individual would sustain no injustice by their Lordships' interposition. But, at least, their Lordships ought not to refuse him the opportunity of laying his case before the court, and then, if the court refused to entertain his complaint, it would still be no fault of their Lordships, while their privileges would nevertheless be respected. If it had been made clear to him that in a similar case to this, the four courts of this country would stay an action, he would admit that their Lordships could not have been asked to pursue a different course; but he had listened in vain to the precedents read by the noble and learned Lords opposite for satisfaction on that point. Had the Courts of Queen's Bench, Exchequer, or Common Pleas ever stayed an action when brought by an individual against a witness on the ground of slander offered in the evidence?

Lord Campbell

There never was such an action brought since Westminster Hall was built.

The Earl of Wicklow

The noble and lerned Lord might say so; but how did he know that they would not allow such an action if it were brought? He looked on this question as a matter of discretion altogether; there could be no doubt they had a right to take this step, but was it expedient to do so? The noble and learned Lord said these cases would multiply. Why was that to be expected? Because these privileges were not popular in the country. When they were required in defence of popular rights against the Crown, the public was with the Houses of Parliament, and ready to support them. Now, there was no fear of these rights being attacked by other quarters; but there was a deep-rooted dread in the country of the assumption of undue privileges by Parliament. The noble and learned Lord had brought forward a number of cases to show that this question should not be submitted to the Judges. He was surprised that the noble and learned Lord, of all men, should maintain that position, for how had the present embarrassments been produced? By the advice of the noble and learned Lord himself, when Attorney General, who recommended the House of Commons to appear to an action—a most constitutional course, no doubt; but the noble and learned Lord, who was the author of it, was the last man who should have taken the tone he had done to-night. In the present case, an individual complained of a grievous injustice which had been done to him by slanders on his character, and brought an action; then their Lordships interfered, and said they would either oblige him to stay quiet and rest under the imputation, or commit him to prison.

Lord Campbell

remarked, in reference to what the noble Earl opposite had stated, that it was true he had given advice in the case of Stockdale and Hansard, that the defendant should be allowed to plead; and he was prepared to take on himself the responsibility of that advice. But after what had been done in the case of Burdett and Abbot, he certainly at that moment had not the courage to advise a different mode of proceeding. He had then the most complete conviction, which was shared by almost all the lawyers in the House, and others whose assistance he had had, that as soon as the Court of Queen's Bench was informed by the Speaker that the publication then complained of was by order of the House, the Court would be perfectly satisfied, and would immediately give judgment for the defendant. It was to the great astonishment of himself and all the lawyers in the House of Commons, he believed, without a single exception, that a different decision was given. That most distinguished lawyer, whose loss they now deplored, Sir W. Follett, the present Lord Chancellor of Ireland, who was then a Member of the House of Commons, all concurred in believing that that judgment was erroneous. It was on account of that judgment that he would decline again to put the privileges of either House of Parliament to hazard. He now regretted the advice he had given, and deemed it the more incumbent on him, from what he had done on a former occasion, to warn that House of Parliament to which he had the honour to belong, to avoid such a precedent. Wherever an action was brought in direct breach of their privileges, as his noble and learned Friend allowed the present to be, his earnest advice would be that, for the good of the public, they should interpose vivâ manu, and stop it.

On Question, resolved in the Affirmative.

The Lord Chancellor

then moved to resolve— That the said John Harlow having been guilty of a Breach of the Privileges of this House, be committed for his said Offence to the Custody of the Gentleman Usher of the Black Rod, until the further Order of this House.

On Question, agreed to; and ordered accordingly.

The Lord Chancellor

then moved to resolve— That the said Peter Taite Harbin has been guilty of a Breach of the Privileges of this House.

Lord Brougham

remarked, that an attorney was placed in a very peculiar situation. He could not refuse a client who came to him; but now their Lordships were about to say that no attorney should undertake the defence of a weak party against one who was greatly superior in strength. The expenses consequent on committal to the custody of the Black Rod were very considerable, and must operate with great force in deterring attorneys from undertaking the defence of clients. Here it was to be remarked that the attorney in his declaration only stated that he had received no instruction to discontinue the action, and not that he would not discontinue it. With respect to the case of Burdett and Abbott, no one could suppose that either Parliament or the courts of law would act in the same manner and on the same principles as in that day. Not a day passed in which attacks both in Parliament and the courts of law did not appear, which, if they had been published at that time, would have been visited with imprisonment. There was an attack only the other day on the Lord Chief Justice of the Queen's Bench, for wilfully stating a falsehood in the charge to the jury, for the purpose of injuring the editor of a newspaper. If one-tenth part of what was now published every day had been published in the time of Burdett and Abbott, there could not be a doubt but the authors of it would have been sent to prison. It would be wrong, however, to suppose that their Lordships abandoned their privileges because they did not exercise them every day.

The Duke of Wellington

thought there was one point of this case very remarkable, and, he believed, attributable to the attorney—the declaration, which was the foundation of the proceedings, only stated that the evidence complained of was given in a room before a certain number of persons, not that it was given in a Committee of the House of Lords.

Lord Brougham

said, that was the fault of the special pleader, not the attorney.

Lord Campbell

thought their Lordships would act most unjustly if they were to commit the tobacconist, and allow the attorney to escape. His noble and learned Friend said it was the duty of the attorney to bring every action that he was asked to bring. He (Lord Campbell) thought that a most mischievous declaration; the attorney ought to examine the case, and see whether there was good reason to bring the action. The tobacconist might not be aware that he was likely to incur their Lordships' displeasure, and he (Lord Campbell) had some compassion for him; but was not the attorney perfectly aware that he was setting their Lordships at defiance? When that attorney said he had no instructions to withdraw the action, was not that tantamount to saying he would not do so?

Lord Brougham

said, he had a communication to make to their Lordships, that the plaintiff had instructed the attorney to discontinue the action. He really thought, under these circumstances, that their Lordships should proceed no further.

The Earl of Wicklow

said, the plaintiff had declared that he did not know at the time of instituting this suit that it was a breach of privilege.

The Marquess of Clanricarde

reminded their Lordships that the question was not as to the plaintiff, but the attorney.

The Lord Chancellor

observed, that the plaintiff's declaration stated that the words were spoken before a certain Committee, but omitted to say "of the Lords," whence it was clear that he felt, if he had inserted those words, he would have committed a breach of privilege, and been brought into peril. He thought, therefore, that the attorney, who had no doubt made him aware of this, was the more guilty of the two.

Lord Brougham

doubted if the attorney would know so clearly what a breach of privilege was. There was a great privilege lawyer behind him—the late Attorney-General—who said nobody knew what the privileges of the House were—even the Judges were completely ignorant of it; and nobody knew what they were but the House itself; by which his noble and learned Friend meant himself and one or two others.

On Question, resolved in the Affirmative.

The Lord Chancellor

then moved— That the said Peter Taite Harbin having been guilty of a Breach of the Privileges of this House, be committed for his said Offence to the Custody of the Gentleman Usher of the Black Rod, until the further Order of this House.

On Question, agreed to, and ordered accordingly.