Lord Brougham, with reference to the discussion on the Standing Orders, said, as some difference of opinion had arisen whether they should proceed by Bill or Resolution, he had, in order to obviate delay, prepared a Bill, which he now presented to their Lordships, to enable the Houses of Parliament to order recognizances for costs in local and personal matters.
§ Bill read 1a.
§ Their Lordships then adjourned.
§ The following Protest on Privilege of Parliament, was entered on the Journals.
§ DISSENTIENT—
- 1. Because this House is now, for the first time, interfering to stop by force an action brought against a party for a wrong done to a fellow subject in slanderous words, alleged to have been falsely spoken, and is thus inter posing its power, under the name of privilege, between the subject and its strict legal right, sought to be made good in a court of law by the course which the law has prescribed.
- 2. Because, whatever right the House may be supposed to derive from precedent, that is, from former instances in which it has exercised similar powers, there can be no doubt that in former times both Houses of Parliament were wont to do many acts, under the name of asserting their privileges, acts which, in the present day, and for a long time past, both Houses of Parliament have wholly abstained from doing, and which would now be considered by all mankind to be gross and wanton violations of all justice.
- 3. Because, though the right, however founded, or however proved, to do such acts as these, or even such acts as the present of a far less objectionable kind, were admitted, yet it is always a question of expediency and discretion whether or not this power, even if it be possessed by right shall in any given case be exercised; and it ever behoves both Houses of Parliament to be most cautious and abstinent in the use of powers like these, which are assumed by them over parties charged with offending against themselves, and are used by them in their own case without the intervention of any impartial and judicial authority.
- 4. Because it is, in a peculiar manner, the duty of both Houses to abstain from such acts when they reflect that there is no code of privilege promulgated whereby the people may know against what law they offend; that the law is in each case declared, possibly made for the first time, after the alleged breach of it has been committed, and made in the heat of the strife occasioned by the alleged offence; that the Members of the two Houses always differ among themselves both as to the law and its application; and that they who promulgate
469 it are at once the lawgivers, parties, prosecutors, jurors, judges, and executioners; while in this instance alone no power of extending mercy to the offender exists in the State. - 5. Because it behoves this House in a more peculiar manner to avoid placing itself in so strange and anomalous a position, seeing that as it is the Supreme Court of Justice in the last resort in all cases criminal and civil, so it ought to be most anxious ever to set the example of strictly just, regular, legal procedure, and should most carefully shun all violations of law and justice, and should especially be slow to interfere with pending actions, which may in their result come before itself as a high court of appeal.
- 6. Because the cases in which it is expedient and justifiable, from absolute necessity, to interfere with the rights of individuals and the ordinary course of the law, are of a description wholly different from the present, being actual obstructions offered to the proceedings of the Houses, and which must be removed without any delay, else the arm of Parliament would be paralysed; and because no objection could ever be raised to such an exercise of power, and of rightful power, either by the two Houses or by any other tribunal. But constructive contempts like the present are of a wholly different description, and no harm whatever can arise from allowing them to be dealt with by the course of the law as administered in the regular courts of justice, those courts to which the Sovereign, as well as the meanest of his subjects, must always resort for the establishment of rights and punishment of wrongs—those courts to which the Houses of Parliament may most safely resort as the abodes of strict justice—courts pure from all taint of corruption, free from all bias of influence, uncontrolled by the threats either of regal authority or aristocratic insolence, or popular violence, and to which neither faction nor fear can ever gain access.
- 7. Because the argument that witnesses must be protected from vexatious and costly suits is wholly inapplicable to the case, inasmuch as no one pretends to doubt that they may be prosecuted at the instance either of the Crown or any individual, whether a Member of the House or not; and if so prosecuted, never could recover one farthing of their costs, though ever so honourably acquitted.
- 8. Because no punishment which can be inflicted either by a prosecution or by the House upon a witness for the most wanton and the falsest slander of an individual, can afford any reparation whatever to the party thus injured, as the House has not by law the power, if petitioned, to give any such compensation.
- 9. Because the protection of witnesses before the Houses of Parliament never can be regarded as more essential to the public weal, than the protection of witnesses before the courts of civil and criminal judicature; yet no one pretends to doubt that an action may be
470 brought against any person for slanderous words falsely spoken by him in giving his evidence before these Courts; and though no damages could be recovered if the words were spoken in answer to a question put in the cause, yet it is quite certain that the action must take its course, and that nothing could be done by the Court to stop it; so that the witness must be exposed to exactly the same vexation and expense which are alleged to form the only ground for interfering to stop the action in the present case. - 10. Because the order to prevent a defendant from pleading, or the commitment of the plaintiff for a constructive contempt, never can really stop the action, which may proceed through all its stages whatever be done to the parties; unless indeed the greater and unheard of violence were committed of arresting the Judges and their officers, and destroying the record, and tearing the proceedings from the file.
- 11. Because all the arguments drawn from alleged analogies in a Court of Equity, are wholly wide of the question, inasmuch as the granting an injunction to stay actions at law, or to prevent receivers and other officers, or quasi officers, of the Court being sued for acts done under its authority, are not granted discretionally, but are matter of strict right; and inasmuch as such injunctions only prevent the party against whom they issue from obtaining his remedy in one form, reserving it to him in another, nay, securing it to him in the Court which stays the action; whereas the present proceeding deprives the party of all remedy whatever, the House having no power of authority to grant him redress.
- 12. Because it is a great aggravation of the mischief so justly complained of, that for the last nine years the other House of Parliament has sold all the Papers printed by its authority, allowing a discount to encourage the trade in those publications: and that though this House has not as yet engaged in this branch of business, yet it communicates its prints to the other, which sells them with its own.
- 13. Because the inexpediency, injustice, and cruelty of exercising the alleged privileges of the House are strongly illustrated by the peculiar circumstances of the present case. A complaint is made by a Peer that an action has been brought against a witness. The defendant is publicly described as a most respectable per son, who had served well in the Peninsula; to the plaintiff is applied the most severe and even coarse expression; while in no court that tried the case could such praise or censure of the character borne by the parties ever be heard for an instant, much less proved in evidence; and while it is also manifest that precisely the same course must have been pursued had the respectable man been the slanderer, and the censured man been the injured party. Under the prejudices excited by such statements, the parties are examined at the bar. The plaintiff is compelled to disclose his case
471 to the defendant. He describes himself as grievously injured, and as severely suffering from the effects of the attack made upon his character by the defendant. He further declares that he was wholly ignorant of the privileges of the House, wholly unconscious of having acted in breach of them by bringing his suit—a thing the more easily believed when we reflect that the nature of parliamentary privilege was distinctly stated, in debate, to be wholly unknown to the Judges of the land, and only understood by the House itself. Finally, the attorney, who has been seized and imprisoned for following his client's instructions, declared that he acted under the advice of counsel; and afterwards informed the House, through a Peer, that he had received directions to discontinue the action—yet both client and attorney are imprisoned, the attorney after this communication was made; and nothing whatever is done against the counsel who deliberately advised the whole proceeding. - 14. Because nothing can be more unlike all the judicial proceedings to which the present has been compared, than the course now pursued, inasmuch as whenever the law has declared that a court shall not proceed in any case by reason of another jurisdiction being interfered with, a particular mode of preventing this proceeding is provided by the known law; and in another and important particular, the present proceeding is extremely unlike that of injunction, to which it has been likened, for an injunction is commenced to stay proceedings in one court, in order that justice may be done in another which has possession of the suit; nor is any one prevented unless he disobey the order so given; whereas we issue no order, but at once proceed to punish the party before he has been guilty of any disobedience, or had any opportunity of doing what we desire he should do, and we punish him on the sole ground of his having broken some privilege unknown to him, and which we admit is understood by nobody but ourselves.
- 15. Because, finally, it is all along assumed in the course of these discussions, that whatever privilege we do not in any case exercise, we cease to possess; whereas there are many privileges most undeniably belonging to us, some which in former times were constantly exercised—some which we still declare to be ours on the face of our Standing Orders—and none of which have now for a long time past been exercised at all; and in illustration of the varying usage which exists respecting such privileges, it may further be remembered that a very great change has come over this question, even within the last 40 years; as no one can affect to think that either the Houses of Parliament or the courts of justice would at this day punish summarily for contempt those acts which frequently were thus visited within that period of time, including the very publication for which Sir Francis Burdett was sent to the Tower, and which raised the last great discussion
472 of the Privilege Question in Parliament, in the courts of law, and in this place.
§ BROUGHAM.
§ WICKLOW.
§ P. S.—The Earl of Radnor was prevented signing this protest by accident.