Lords Sitting of 8 May 1857

MINUTES.
Sat First in Parliament.—The Earl of Ellesmere, after the Death of his Father.
Took the Oaths.—Several Lords.

GENERAL ASHBURNHAM—DISCIPLINE OF THE ARMY—OBSERVATIONS.
THE EARL OF CARDIGANsaid, that he wished to put a question to the noble Lord the Secretary for War with respect to the attack that had been recently made on General Ashburnham. He was, unfortunately, not present yesterday upon the occasion of moving the Address in reply to Her Majesty's gracious Speech, when an incidental discussion arose upon the affairs of China, and the expedition which had been lately sent out to that country. He now wished to bring before their Lordships' consideration the subject of the attacks which had recently been made upon the general officer appointed to command that expedition. He was glad to hear that the noble Lord (Lord Panmure) had made what he (the Earl of Cardigan) could not but consider an excellent suggestion—that those officers who anonymously or otherwise made erroneous statements in the public press against their commanding officers should not be employed by Her Majesty's Government in future. He (the Earl of Cardigan) also understood that the noble Lord the Secretary for War had great difficulty in ascertaining who those officers in the army were who, from time to time, were the authors of those statements. He could not think there would be much difficulty in arriving at the truth and knowledge of who the authors were. But the question he wished to put to the noble Lord was, whether he did not think the present state of things was unreasonable; and, in the case of officers who were the authors of the present calumnies against their superior officers, whether it was not advisable that some system should be adopted by which the noble Lord as Secretary of State for War, in conjunction with the Commander in Chief, might be enabled to bring any such offender to trial in order to test the truth of his assertions; and, if he failed in establishing their truth, that he should be punished in the most summary manner? He had taken this occasion of bringing the subject before the notice of their Lordships, because a case had now arisen in which, the interests of
70
the public service were concerned. The expedition to China was comprised, like every other expedition, of commanding and subordinate officers; and if attacks of this kind upon General Ashburnham were permitted, it was impossible that the subordinate officers and men could feel a proper confidence in their commanding officer. The interests of the public service, however, demanded that such a feeling should prevail among the subordinate officers and men who composed the force. At the same time that he felt deeply the attack that had been made upon General Ashburnham, he did not deny that his statement was somewhat connected with his own position. He had had the honour of addressing their Lordships some time since on this subject, and he was then advised that it would not be desirable to bring the persons who had attacked him to a court-martial, particularly those who had attacked him anonymously. Their Lordships, however, knew that he had suffered under the grossest calumnies, and he felt it to be a great injustice that the officer who had so calumniated him had not been compelled to prove the truth of his assertions. He (the Earl of Cardigan) was not then going to bring his case before their Lordships; but he must say, that unless some check were put upon this system of subordinate officers calumniating their superior officers, the discipline of the army would be destroyed; because, if officers were permitted to calumniate their superiors with impunity, even non-commissioned officers and all the subordinates in the army would do the same, and any man who had a spite against his commanding officer would take this means of revenging himself. He would, therefore, earnestly entreat the noble Lord to consider whether it would not be expedient, in the case where an officer publicly avowed himself to be the author of letters containing attacks upon his military superior—or in any other cases where it was possible to discover who he was—that some steps should be taken to bring him to trial. He repeated that he had himself been grossly calumniated, and that those calumnies had been repeated since he had had the honour of addressing their Lordships on this subject. When he remembered that his services in the Crimea had met with, fortunately, the support and approbation of all his superior officers, both those who were friendly to him and those who were not—that they were acknowledged in the public de-

71
spatches —having met with that approbation and approval, his own conscience was perfectly clear as to his having done anything which deserved in the least degree the attacks which had been made upon him; and he felt perfectly satisfied that upon every one of those occasions upon which his conduct had been impugned he could not, consistently with his duty, have taken any better course than that which he had adopted.
LORD PANMURE: My Lords, as the noble Earl has called my attention to this subject, I have no hesitation in saying that, in cases where junior officers, either anonymously or otherwise, make attacks on the conduct of their superior officers, I shall be most happy to give to the Commander in Chief all the assistance in my power in maintaining the discipline of the army by bringing those junior officers to account. But there is some little difference between the case of the noble Earl and that which was the subject of discussion in your Lordships' House yesterday. The officer who attacked the noble Earl has avowed his name as the author of a book which he had published in the first instance anonymously. When the noble Earl brought his case before your Lordships I advised him, as his reputation and his position were uninjured, to treat with the contempt they deserved the insinuations made against his military character in that book; and I told him at the same time, that if he wished a remedy in respect of the charges which had been brought against him, the law of the land was open to him as a means of setting his character right with the public. Moreover, the officer who wrote that book was not under any employ by the Commander in Chief. I do not, however, wish now to renew the discussion on the case of the noble Earl; but, in reference to the debate which took place last night, I am desirous of setting myself right with your Lordships with regard to a part of the observations I made on that occasion, in which, I think, I have been misrepresented. I am charged with denying the right of the public press generally to criticise appointments made by the Executive Government—made, that is to say, not by the present Executive Government only, but by any Executive Government. Now, I never had the folly to make any such assertion; on the contrary, I hold it to be the vocation of the public press to criticise all appointments, made either by this or any other Government,
72
because it is their duty so to do for the guidance of public opinion. But what I did call in question was the manner in which the criticisms against General Ashburnham had been made—by an inferior officer, and directed against the professional character of an officer under whom he had served—and the time at which they had been made. Your Lordships will recollect that those criticisms were made, not during the time when Parliament was sitting, and when an answer could have been given to them in your Lordships' House, or in the other House of Parliament, and not during the three weeks which afterwards elapsed when General Ashburnham was in this country and might have defended himself, but after he had left the country as the commander of the expedition intrusted to him by the Government. I think, my Lords, I did right in making the observations which I addressed to your Lordships yesterday on this subject; but I repeat that I by no means denied, or intended to deny, the right of the public press at large to review any appointment that might be made by the Executive Government.
THE EARL OF CARDIGANsaid, he had made no reference whatever to the opinions of the press in the observations he had addressed to the House. What he said had respect to the conduct of junior officers calumniating their superiors, and he contended that unless officers so conducting themselves were brought to account, there would be no way of testing the truth of the accusations they made against others, or of maintaining intact the discipline of the army. In his own case, he must remind the noble Lord that he had had no redress, though he had sought it by the means suggested.
THE EARL OF HARDWICKEsaid, this was the case of an officer abused behind his back by an anonymous writer; and the responsibility of the Government for the appointment required them to defend him. He thought, therefore, the noble Lord had done no more than his duty in vindicating the appointment of General Ashburnham to this command. He knew nothing of the attack itself; but he would say that when an officer attacked the character of another in the public prints, it would be the manly and honourable course to sign his name. To make a public attack anonymously was disgraceful. He was not astonished that his noble Friend (the Earl of Cardigan) should call attention to this matter, con-

73
sidering how he had been aspersed himself. The promise of Lord Panmure that he would assist the Commander in Chief in all such cases to take notice by the legal process of court-martial of these attacks, amounted to nothing more than was universally done in the service. That a junior officer was to malign his senior, the two being in the full pay of the Crown, was a thing impossible to admit, unless they were to overthrow military discipline entirely. But when the question arose with regard to an officer on half-pay, or on retirement, who wrote a book, that materially altered the case. The liberty to do so no doubt existed; the propriety of doing so was another question. Governments in olden times used not to be very fond of officers who were fond of writing; and if that course were pursued on all occasions, and if the Government showed a disinclination to have anything to do with officers who were in the habit of writing, they would do a great service. It was not necessary, in a military point of view, that an officer should be a great writer; and if gentlemen retired or on half-pay were to sit down and write abusive books or libels against officers under whom they had served, such a practice must have a tendency to injure military discipline, and the facilities for carrying on the public service. The military law had ceased to have power in such cases, and it must be left to the civil authority of the country to vindicate the character of any officer so attacked. The case then became one of considerable difficulty, as the liberty of the subject might be considered to be connected with it. He thought, himself, that unless both the officers concerned in the transaction were in actual service on full pay, the Crown should not interfere to vindicate the officer who had been calumniated.
THE EARL OF CARDIGANsaid, that officers upon half-pay were liable to be recalled to active service at any time, and he thought therefore that the military law as affecting these cases ought to apply to them as well as to officers upon full pay.
THE MARQUESS OF CLANRICARDEsaid, that he had been somewhat misunderstood, in having been supposed to blame the conduct of the press with reference to this subject. He had not intended to impute any such blame, nor had he any objection to the discussion raised by the press other than that which arose from the particular time at which such discussion had taken place. What he objected to was the
74
conduct of officers who used the newspapers as vehicles for attacking their superior officers behind their backs. He thought there ought to be some power on the part of the military authorities to punish such conduct. He must say that, while military officers were generally the very first to complain of the comments of the press which censured or criticised military appointments and actions, whether such comments were fair, or whether they exceeded what might be considered the limits of fairness, those officers appeared, in every instance, when they thought they had a grievance, to be the first to avail themselves of the press for the dissemination of their own views. Now, he did not think they were entitled to take both these courses, though they might adopt either. They ought to object to the interference of the press and avoid it, or they ought to appeal to the press and submit to its criticism. He thought, however, that when an officer whose identity might easily be ascertained came forward, as "M. L." had done, to make charges affecting the credit of another officer of high position, some military tribunal ought to be empowered to call upon the accuser to establish his assertion.

PRIVILEGE OF REPORTS.—
  SELECT COMMITTEE MOVED.

    ADMINISTRATION OF OATHS.
    SELECT COMMITTEE MOVED.
    LORD CAMPBELL: My Lords, I shall detain you for a very few minutes in moving for the reappointment of the Select Committee, the appointment of which I obtained during the last Session, to inquire into a very important and difficult subject—namely, whether the privilege now enjoyed by reports of the proceedings of courts of justice may be safely extended to the reports of the proceedings of the two Houses of Parliament and of other public assemblies. At present, according to the established law, the proceedings of courts of justice may be published with impunity if they are fair and bonâ fide. The greatest benefit has arisen to the public from that privelege; but it extends no further—not even to the proceedings of the two Houses of Paliament. It has lately been decided—and I believe the decision is allowed to be a sound one—in the case of Davison v. Duncan, that if, except in the case of proceedings of courts of justice, the editor of a journal publishes accounts of any other proceedings at all criminatory of any individuals, the pro-

    75
    prietors of the journal in which the report is given are liable to an action: and it was stated by my distinguished predecessor. Lord Denman, that there was no immunity for a fair and faithful and accurate account of the proceedings of this or of the other House of Parliament. Now, there does seem to be a grievance here; because although actions are not frequently brought in consequence of the reports of proceedings of either House of Parliament, there is no doubt they may be brought; and, in fact, considerable anxiety prevails lest actions should be brought under such circumstances; and if actions should be brought, there can be no defence on the part of the most distinguished and trustworthy journals. It seems to me, my Lords, that this is a state of things which ought not to continue if it can be prevented. A remedy has been proposed to which I certainly can by no means accede. It has been proposed that all distinctions between verbal and written slander shall be abolished, and that it shall be a good defence to an action for a written libel if the defendant can show that the statement was made by any individual, at the same time pointing out the individual. This proposition is supposed to be founded upon what is called "Lord Northampton's case;" but, as my noble and learned Friend on the cross bench well knows, it is founded upon an utter misconception and misrepresentation of that case. The dictum of the Judges who sat in the Star Chamber went, if properly understood, no further than this—that when what was said by another was repeated upon a proper occasion, the author of the statement being at the same time pointed out, it might be defended. But to allow that what has been whispered in a corner may be published in every journal in the empire with impunity, would be wholly inconsistent with the protection due to the characters of individuals. If all that is said at a public meeting, or in any assembly that may be called a public meeting, is to be published without any remedy being provided for those whose characters may be attacked, the most mischievous consequences will ensue. Public meetings, may be got up for purposes of calumny, and the person who utters the calumny may be a man of straw, who will fly the country as soon as he has uttered his slanderous statement. I think, however, that a remedy may be devised which will, at all events, mitigate the evil that exists at present. Some years ago I myself pro-
    76
    posed that complete immunity should be given to fair reports of what took place in either House of Parliament. My proposition was supported by the late Lord Denman; but, unfortunately, it was not successful. I certainly cannot conceive any well-grounded objections to that proposal. All the arguments by which you support the privilege of reports of law proceedings will equally apply to the proceedings of the two Houses of Parliament. What is the foundation of that immunity of law reports? The public good. Well, I suppose your Lordships and all the Members of the other House are of opinion it is for the public good that the proceedings of both Houses of Parliament should be made known to the country? But I would not stop there. There are other assemblages with whose proceedings it is desirable that the public should be acquainted. This day, I believe Convocation assembles, and I suppose that to-morrow we shall have an account of the speeches of our most reverend and right reverend Friends. Notwithstanding the grave character of that assembly, statements are sometimes made there which might form the grounds of action: and it would be extremely hard if proceedings were taken against The Times or any other journal for accounts of what had been said by the Archbishop of Canterbury or by the Bishop of St. David's. It may be urged—but I only throw out the suggestion, and give no opinion on the matter—that the immunity should be extended to all meetings held under the authority of an Act of Parliament, and to which the public may rightfully claim admission. Some line must be drawn, for it would be monstrous to contend that anything that can be called a public assemblage should be privileged. If that were the case, no doubt Mr. Ernest Jones's meetings and the Sunday assemblages in Hyde Park would be much frequented by those who wished to calumniate their neighbours. Some line must be drawn with regard to the public meetings to which the privilege is extended; but, if this cannot be done, it is matter for consideration whether it might not be enacted that if a fair account of what has taken place at a public meeting is given, and no real damage is inflicted upon the character of any one by such publication, the jury might be entitled, in case of an action being brought, to find a verdict for the defendant. Until very lately if a jury found a verdict for a farthing damages full costs

    77
    followed; but the law in that respect is altered. I ask your Lordships, however, to consider the case of an action for libel where the plaintiff has suffered no damage, but where the proprietors of the journal against which proceedings are taken are obliged to pay a very heavy sum as costs independently of the anxiety and disagreeable consequences which the mere fact of having an action brought against them must occasion. I merely offer these suggestions in order to induce your Lordships to institute an inquiry on the subject, and I trust you will consent to the renewal of the Committee which was appointed during the last Session.
    I wish also to take the opportunity of calling your Lordships' attention to the manner in which oaths are administered to witnesses who are examined before Committees of this House. When the House is not sitting witnesses cannot be sworn, and the consequence is that persons are frequently brought up from the country and are kept in town for some days, or are sent back to their homes and again brought to London to be sworn, either proceeding entailing very considerable expense. The shift is sometimes resorted to of allowing witnesses to give evidence without being sworn, and of afterwards swearing them at the bar of the House that evidence they have previously given is true. The most serious inconveniences arise from the practice; for sometimes, while their Lordships are engaged in the exercise of their judicial functions, there is a tremendous rush to the bar; the learned counsel who are addressing their Lordships are interrupted, the Lord Chancellor is alarmed, and there is as great a confusion as if a second Lord George Gordon's mob had broken into the House. Yet when we come to inquire what is the matter, we find it is only the witnesses on some railway Bill come to the bar to be sworn. The sole question which appears to me to arise is, whether we can remedy the evil by means of a standing order, or whether we must have recourse to legislation. When I first considered the matter I was of opinion that your Lordships had power, proprio vigore, to authorize witnesses to be sworn before Select Committees. Since I first brought the matter before your Lordships, the matter has been inquired into by my learned Friend Mr. Macqueen, and the opinion I formerly entertained has been fortified by the result. It seems there have been repeated
    78
    instances where your Lordships have delegated the power of administering oaths to witness to Commissions—for instance, it appeared that it had been systematically done so in the case of the tryers of petitions, and in the case of Lord Lovat, a commission was sent down to Scotland to examine witnesses on oath, and that Commission did administer the oath and examine witness so far off as Inverness. If that is within your Lordships' power as to Commissions, why is it not within your power as regarded Select Committees from your own body? I will not, however, give any decided opinion on the question; especially since I understand that my noble and learned Friend on the woolsack and my noble and learned Friend on the cross benches (Lord Wensleydale) entertain doubt as to the power as regarded Select Committees by means merely of a standing order. Until these doubts are removed, I shall not attempt to remove the difficulty by that means. Then as regarded legislation, it might be said that the House of Commons would object to pass a Bill to enable their Lordships to swear witnesses before a Select Committee unless similar power was given to themselves. It is true that the House of Commons itself had no power of administering oaths; but that, in my opinion is an anomaly which ought to be removed, and similar powers ought to be given to the House of Commons in every respect. However, for the present, I shall content myself with moving, first—
    "That a Select Committee be appointed to consider whether the Privilege now enjoyed by Reports of the Proceedings of Courts of Justice may be safely and properly extended to Reports of the Proceedings of the Two Houses of Parliament, and of any and what other Assemblies or Public Meetings, under any and what Conditions or Restrictions."
    And secondly—
    ''That a Select Committee be appointed to consider and report on the Expediency of altering the present Mode of administering Oaths to Witnesses to be examined by Committees of the House."
    THE LORD CHANCELLORthought that all their Lordships would concur in the propriety of the course proposed to be pursued by the noble and learned Lord. Both the subjects to which attention had been called were of the greatest importance. With respect to the last alluded to be confessed, looking at the matter with the eye merely of a lawyer, he doubted whether it would be safe

    79
    to attempt to effect the important change suggested simply by a standing order. It might be possible, investigating the subject with the eye of an antiquarian, to discover precedents, leading to a conclusion that the right of delegating to Committees of the House to swear witnesses did exist; but it must be felt, if such a course were taken and a witness were afterwards charged with perjury for evidence given before a Committee that it would be to the last degree doubtful what might be the decision of the Judges in Westminster Hall on the validity of the oath so administered; and therefore in matters which might involve criminal consequences of great importance, he was satisfied that it was best not to leave the matter to chance, and, unless his noble and learned Friend could satisfy the Committee for which he now moved, that the power for which he contended did exist beyond any reasonable doubt, he was sure that legislation was the wisest course to pursue. The object of administering oaths was to give the highest sanction to truth, and it was always said that an oath should be administered with the greatest solemnity and by the highest functionaries; but any of their Lordships who had witnessed the administration of oaths in that House must be aware that that object was not promoted by the present practice. His noble and learned Friend had certainly not exaggerated the indecorum attendant on the swearing of witnesses at the bar of the House. Sometimes, in consequence of the rushing in of witnesses to be sworn at the bar, there was such a disturbance that the proceedings of a judicial nature which were going on had to be suspended, or else they were continued in the midst of noise made by a crowd at the bar taking oaths with very little of solemnity. There was the least possible solemnity in the mode of administering oaths, and that the evil ought to be remedied he had no doubt. He felt convinced that a power given to Select Committees of their Lordships' House to swear witnesses would work well, and the oaths would then be administered with greater solemnity. As at present advised, he saw no difficulty in the suggestion that the Commons would not pass a Bill to enable witnesses to be sworn before their Lordships' Committees without claiming a similar privilege for themselves. He had not considered that part of the question, but he saw no reason why they should not enjoy such a privilege if the
    80
    object was to get at the truth, and if the administering an oath afforded greater security of attaining that object. In that Motion of his noble and learned Friend, therefore, he entirely concurred, although he would caution him and the rest of their Lordships not to be led away by old antiquarian precedents of what had been done by the Tryers of Petitions in former days, which might afford very scanty security against what might be the decisions of Westminster Hall in modern times. With regard to his other Motion, he entirely agreed in the expediency of removing what he admitted to be an acknowledged and crying evil. He feared that it would be very difficult to arrive at a definition of what should be regarded as a public meeting, the publication of whose proceedings ought to be allowed; but he believed that the suggestion of his noble and learned Friend that juries should have the power, in cases where they thought that no damage had been inflicted, of finding a verdict for the defendant, which would give the defendant his costs, would afford a simple and practical remedy for the existing evil. He reserved to himself, however, the right to examine the subject more in detail before committing himself to the approval of any particular measure.
    Motion agreed to; Committees severally nominated.
    House adjourned at a quarter past Six o'clock, to Monday next, Eleven o'clock.