§ THE LORD CHANCELLOR (Lord HALSBURY)
said, that in moving the Second Reading of this Bill he was in some difficulty, because, although the evil with which the Bill seemed to deal was very great and urgently required a remedy, it was one he could not pretend to illustrate by any facts. He believed it was not possible to deny that of late years there had been a considerable amount of publication of proceedings in courts of justice which it was very desirable, if possible, to prevent a repetition of. It would have been perfectly easy for him to have gathered instances and to have invited their Lordships' attention to the question whether it was to the public advantage that such publication should be sown broadcast all over the country amongst persons of both sexes and of all ages. The only question to his mind was whether their Lordships would agree that the remedy which he proposed was the proper one. There were two modes of proceeding. There was the closing of the court and the hearing of case in camera, as it was called, or the suppression of the publication of corrupting details. He would regard with the greatest apprehension and would deprecate earnestly any attempt to increase the power of trying cases in private; indeed, he believed that such trials would be attended with disastrous consequences in more ways than one; they would, for instance, do much to undermine the complete confidence which he was happy to think at present existed in the administration of justice. It had been held that the Lord Chancellor or the Judges having jurisdiction in lunacy had power to sit with closed doors in questions of lunacy, and it had also been held that the Court of Chancery had power, when dealing with its wards, to hold its inquiries with closed doors. Those cases were not exceptions to the general rule, because in the ordinary sense the administration of justice was not concerned. The only other case he was aware of, of power to try a case with closed doors, was that where the object of the action might be absolutely destroyed by the hearing in public. He was not aware of the legal right of the Divorce Court to sit in camera. When the Divorce Act was 1435 passed Mr. Malins, afterwards Vice-Chanceller Malins, moved that the power to sit in private be given to the Court, but by a large majority the Committee refused to give such power. They acted on the theory, which he did not accept, that by consent of parties cases might be heard in private. He confessed that he shared the view expressed on one occasion by Lord Cairns, that where they were dealing with public law and rights, the consent of the parties could not give jurisdiction to do that which the law did not recognise. If the evil of which he had spoken was admitted, and if the mode of getting rid of it which he had just described was rejected as inappropriate to our institutions, as he thoroughly believed it was, the only other mode of doing it was to prevent the publication of those details which might be injurious to public morals. It might be said it it was very easy to indict a newspaper, but no one ever heard of the Newspaper Libel Act being put in force in respect to a newspaper report that was correct in fact. He was not singular in the view he took of this matter or as to the mode in which the evil ought to be repressed, because in 1887 a Bill, which ran upon the same lines as this, was introduced into the House of Commons by the present Solicitor General and others, all of whom were perfectly competent to form a good opinion on the subject. Of course, no one expected that a Bill of this sort could be introduced without hearing it said, it amounted to a great innovation. It was said for instance, there would be a restriction of the power of the Press. He believed that many of the newspapers would be extremely gratified if this Bill was passed; but any paper which conducted its business properly had, as the law now stood, to do it at the cost of its circulation, for it could not be denied that there was a demand for these sort of details. Therefore, it would be in favour of the Press generally that these restrictions should be imposed. Of course, it was a great premium to place on the papers which alone published these details. He could not help feeling that the Bill proposed to give the Judges a novel power. He did not conceal from himself that it was an additional burden which it was proposed to put on the Judges, and as to that all he could say 1436 was that a Judge had to try to do his duty. He did not think it an unreasonable thing that the Judge should be able to make an order and exercise his power in the name of morality and decency. He considered that the publication of such evidence was likely to be prejudicial to morality, and that it was a traffic which should be stopped. The clause in the Bill was almost a reproduction of that in the Bill of 1887, but he thought it might be done in a simpler way. Therefore, he had drawn the clause as follows:—Where a Judge of the High Court is of opinion that any evidence given at any trial before that Judge is of such an indecent character that the publication thereof is likely to be prejudicial to public morality, the Judge may order that such of the evidence as is specified in the order shall not be published, and any person who publishes or is a party to the publishing of such evidence in any newspaper, periodical, book, or any other public manner, in contravention of such order, shall be guilty of contempt of Court and punishable accordingly.He thought it was better, remembering that the Judge sat under the responsibility of his high office, that he should be left to deal with the matter at large. He should not resist Amendments, but he thought the Bill had better be left as it was, for the Judges were called upon to exercise similar jurisdiction in respect to other matters; and unless they allowed the thing to be done promptly and the order made at once and the punishment awarded, prohibition would be a delusion. It was Lord Tenterden, he thought, who fined the Observer £500 for publishing the proceedings of a trial before the conclusion. The power was one which the Judges were constantly exercising. He believed many fathers of families, who had to apply an index expurgatorius at the breakfast table, would be grateful to their Lordships if they passed this Bill and mitigated the indecency to which publication was given in some newspapers. He moved the Second Reading of the Bill.
§ LORD RUSSELL OF KILLOWEN,
in rising to oppose the Bill, said, he should have hesitated to undertake this duty, as he conceived it to be, were it not that he knew he was speaking the views of a large body of the Judges, with whom he had an opportunity of conversing. There was only one opinion entertained by them—that this Bill was not called for, that it proceeded on an erroneous principle, and that, if passed, 1437 it would be ineffective and unworkable. The Judge who presided over the Probate and Divorce Court was emphatic in his opinion that the Bill was not called for, and that the existing law was sufficient to meet existing difficulties, although he ought to add that, in that Judge's opinion, the Bill might be made workable if passed. He was charged by the Master of the Rolls, who was not well enough to be there, to express his strong objection to the Bill, and to say that he concurred in the view now submitted to their Lordships. He was not able to give the authoritative view of the Judges, as a body, as that could only be done in a Council of the Judges, called by the Lord Chancellor. He need not say that all were in entire sympathy with the object of the Bill. Everyone felt that indecent publications should be stopped and adequate punishment inflicted. The noble and learned Lord had said that he could furnish sheafs of evidence of the pressing need for such a Bill; but, speaking for himself, he was not aware of the existence of any such serious evil as that hinted at by the noble and learned Lord. He objected to the Bill because it introduced a new and dangerous principle, for which, if defensible at all, a strong case was required. That strong case, however, was not forthcoming. He objected to it, moreover, because it was the substitution for trial by the ordinary constituted tribunals of the country of trial by the opinion of a Judge; and because it created a new and hitherto unknown crime—namely, disobedience to the order of a Judge. The celebrated case in which Lord Tenterden fined a newspaper was an instance of interference with the course of justice. The power of punishing for contempt, which was a highly objectionable power if it could be dispensed with, should not be lightly extended. To make the person offending subject to be tried by the Judge by whose opinion his crime was created, would be to introduce an anomaly in the law. ["Hear, hear!"] If the Bill were passed it would be ineffective, because its provisions were confined to the Judges of the Superior Court, whereas criminal trials of an indecent character in the first instance came before the Magistrates, and in some cases before the Magistrates at Quarter Sessions. His noble and learned 1438 Friend had said that the existing law was insufficient; when had it been proved to be insufficient? That it had not often been put in force, he thought, was proof that the cases had been rare in which its exercise had been called for. He quite agreed that the Press Act of 1888 was not a very well drawn Act, but a provision in that Act laid down that a fair and accurate report in any newspaper of proceedings publicly heard before any Court exercising judicial authority should if published contemporaneously with such proceedings be privileged, providing that nothing in the section should authorise the publication of any blasphemous or indecent matter. This was merely an affirmation of what was the existing law, and he ventured to say, without fear of contradiction, that any paper which published matter which, in the opinion of the jury, was indecent matter, was at this moment subject to the criminal law. In addition to this, Act 21 and 22 Victoria, cap. 83, recited that it was expedient to give additional powers for the suppression of the trade in obscene books, and so forth, under which a magistrate might act. There was no earthly reason why indecent newspapers of the character to which his noble and learned Friend had referred should not be presented if they exist; he himself knew them not, nor did he know anyone who knew them; but if they existed, there was no reason why the provisions of the law should not be enforced against them. But, apart from any statutory provisions of the law, it was a misdemeanour at common law to publish indecent matter, just as it was to publish blasphemous matter. He need not remind them that prosecutions had been successfully maintained. This Bill introduced really two new and dangerous principles. Any writer, whether of the Press or not, might write and publish what he pleased without previous sanction, taking the consequences, be they civil or criminal, which the law annexed to what he did. That was what was called the liberty of the Press—reduced to its simple elements—a phrase which was very much misunderstood. It was now proposed to establish for the first time in our law a principle of censorship unknown to our law. ["Hear, hear!"] The next objection was that the Judges would have to say whether in their opinion the 1439 evidence was likely to be prejudicial to public morality; quot homines, tot sententiœ. He entirely agreed with what his noble and learned Friend had said as to the giving of evidence in open court; but, after the evidence had been given, what was the Judge to do? Was he to make an order and to indicate in that order all the evidence which he thought to be injurious to public morality, and which should not be published, and then give that order to the public? Evidence which a Judge thought ought not to be published, a jury, if it were before them, might think was not likely to be prejudicial to public morals. There were some in these later days who were inclined to depreciate the value of the opinion of a jury as to these matters; he was not among them. [Lord ROSEBERY: "Hear, hear!"] He had always thought that the average opinion of twelve men of common sense was at least equal to the judgment of twelve Judges on matters of fact such as this. Such a Measure as was proposed required a strong case to justify it, and he submitted respectfully to their Lordships that such a case had not been made out.
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (Lord JAMES of HEREFORD)
said that he had no doubt that the speech which had just been delivered by his noble and learned Friend the Lord Chief Justice of England, would have considerable effect upon the minds of many of their Lordships, but he did not think that that speech covered all the questions relating to this subject that had to be considered. The noble and learned Lord had discussed the matter as though it affected only two interests—that of the Judges and that of the Press. There was, however, a third interest which the noble and learned Lord appeared to have overlooked—namely, that of those who read what appeared in the newspapers. Without reflecting for a moment upon the action of those who conducted the Press, he thought that it would be generally conceded that it would be a great advantage if what occasionally appeared in the columns of our newspapers could be suppressed. ["Hear, hear!"] The noble and learned Lord had based one of his objections to the proposal in the Measure upon the inconvenience that would result if the order of the Judge that certain matter should 1440 not be published were disobeyed. The same inconvenience, however, resulted under the existing law in cases where the order of a Judge was disobeyed. In the Chancery Division, for instance, disobedience to the order of a Judge involved contempt of Court, which was punishable by fine and imprisonment, and no greater inconvenience would result in the event of an order of a Judge made under the provisions of this Bill being disobeyed than in the case of the order of a Judge in Chancery being disobeyed under the existing law. ["Hear, hear!"] The noble and learned Lord had also objected to the provisions of the Bill as being innovations, but he failed to see any particular difference between the power to be exercised by a Judge under these provisions and that exercised by a Judge in Chancery. The next point made by the noble and learned Lord was that the power proposed to be conferred upon a Judge would involve an interference with the liberty of the Press. For his part he did not think anyone connected with the Press would think that a restriction that prevented him from publishing indecent matter was an interference with the liberty of the Press. ["Hear, hear!"] Under the existing law it was no doubt very difficult, owing to competition, to exclude from the columns of a newspaper all objectionable matter; but if all newspapers were prohibited from publishing such matter it could not be regarded as a hardship or as an interference with the liberty of the Press. For his part, if this Bill involved any attempt to interfere with the liberty of the Press he did not think it would receive their Lordships' sanction, and he should be greatly astonished if the Press generally regarded a prohibition to publish obscene matter as an interference with that liberty. A noble Lord had said that the only alternative to this Bill would be a Measure requiring a certain class of cases to be heard in camerâ, but he thought that the latter alternative would be most objectionable. When cases were heard in camerâ reports were always circulated which suggested more indecency in the evidence than was actually the case, and in most of such cases there would have been no injury to justice if they had been heard in open Court. If they had to choose between the two courses he believed that proposed by the Bill would be better than hearing 1441 cases in camerâ. The matters referred to by the noble and learned Lord might well be discussed in Committee, and he hoped that their Lordships would accord a second reading to the Bill. ["Hear, hear!"]
§ LORD HERSCHELL
said that no doubt every one would desire that the publication of indecent matter in newspapers should be prohibited. But this was just one of those cases in which, all being agreed as to the end in view, they should be most careful as to the means by which that end was to be attained, otherwise, instead of doing good, they would be doing harm. He entirely agreed with his noble and learned Friend the Lord Chief Justice that the evil sought to be remedied by this Bill was not an increasing one. Cases were tried at the Assizes and at the Central Criminal Court, reports of which, if they were published at all, were confined to a very few lines, and he did not believe that there was any increasing desire on the part of the public to read indecent matter. In such a case as this their Lordships should act, not upon hypothesis, but upon evidence. ["Hear, hear!"] He believed that great discrimination was shown by the Press in the publication of cases involving indecency. ["Hear, hear!"] He believed that it was of the greatest importance to the administration of justice that our Courts should be open not only to those who succeeded in getting into them, but in the sense of publicity in the Press, which was of the greatest importance for the protection of the innocent and the punishment of the guilty. He knew that some people entertained the view that the mere publication of evidence with regard to the relations between husband and wife and the commission of adultery was prejudicial to public morality, and if it were entertained by a Judge it would be open to him under this Bill to prohibit the publication of any such evidence. He believed that if misconduct could be passed over with a mere decree of divorce a far greater blow would be struck at public morality than was struck by the publication of the proceedings in the Divorce Court. It was essential that there should be power in the public to estimate the conduct of parties in that Court, and the power to prohibit altogether the 1442 publication of evidence relating to it would be a very dangerous power to in trust to a Judge. If, however, the Judge was only to prohibit the publication of particular details, it would be essential that he should be constantly on the watch, so that he might make his order as soon as the details were spoken to. If that were not done, the Bill could not work, for the evidence might be published before the Judge made his order, and it would be impossible to punish anyone for publishing that which had been prohibited by an ex post facto order. If the Judge should forget to make an order at the time there would then be a sort of judicial sanction given to the publication of the evidence, because it would be assumed that everything he did not prohibit he did not think indecent or dangerous to public morality. No answer had been given to the point raised by the Lord Chief Justice, that the power was only given to a Judge of the High Court. Many of the class of cases to which the Bill referred were tried at Quarter Sessions, and in all of them there was in the first instance an inquiry before a Magistrate, and it was not until the same evidence came before a Judge of the High Court that its publication could be stopped. Surely that was a great blot on the Bill. No doubt the distinction was drawn because it would be impossible to give this power to every Bench of Magistrates; but surely it was a very serious objection to the Measure that it permitted the publication of these matters when they came before Petty Sessions and only interfered with them when they came before the High Court. He had a great objection to any extension of the power of committing for contempt of Court. He regarded that power with great jealousy and apprehension. It was, he thought, sometimes abused, and it was certainly liable to abuse. He did not see how it could be dispensed with altogether, but if he could see a good substitute for it he would be glad to see it put on the Statute-book as quickly as possible. Under this Bill it was sought, not to keep the proceedings in Courts of justice regular and pure by means of this power of committal, but to use it as a means of punishing an offence of a totally different character—namely, the circulation of indecent matter likely to prejudice public morality. 1443 He had the fullest sympathy with the object his noble and learned friend had in view. If they could strengthen the the law so as to enable this class of offences to be more effectually dealt with, without introducing what in a large class of cases would prove ineffectual and in some even mischievous, no one would be more delighted than he to render every possible assistance. The doubts he had expressed arose, not from any want of sympathy, but from the fear that the means proposed to be taken would prove in many cases mischievous and in not a few ineffectual. One reason why the present law had proved ineffectual was that it had not been put in force. Persons were now liable to punishment for publishing indecent matter, and he saw no reason to believe that if a case of the sort were properly presented to a jury they would not convict. The reason why the present law had not been enforced was, he supposed, that it was no one's duty to do it; but whose duty was it under the present Bill? Was the Judge to scan all the papers to see whether his order had been obeyed? That could hardly be intended, but if the Judge did not do that, the new law would be just as ineffectual as the present. What was wanted was rather better machinery for enforcing the present law. He would suggest that it would be better to see whether they could not agree on the insertion of some further provisions which would make the present law effectual without incurring the dangers and difficulties to which attention had been called in the present Bill. ["Hear, hear!"]
§ THE PRIME MINISTER (The MARQUESS OF SALISBURY)
I am much struck with the fact that although the noble and learned Lord and the Lord Chief Justice expressed themselves as being in the warmest sympathy with the object of the Bill they are going to vote against the Second Reading. All their objections appear to me to be taken to the clauses of the Bill.
§ LORD HERSCHELL
I never expressed any decision to vote against the Bill. I had not made up my mind to do so.
§ THE PRIME MINISTER
Well, you must make haste. [Laughter] There is not much time left for reflection. But 1444 as there is still hope of bending the purposes of the noble and learned Lord, I would implore him to carry out the closing words of his own speech. He expressed a wish that there should be a consultation of those learned in this matter and that they should try to find out together whether the evils, which they all acknowledge to exist, cannot be remedied. The proper way of doing that is either by Committee of the Whole House or by a Select Committee—not by rejecting the Second Reading of the Bill, which would be a pronouncement against the principle of the Bill, and therefore against the object we all have in view. ["Hear, hear!"] Many of the objections of the noble and learned Lord seem to me to be objections which on further consideration he would be inclined to modify. There was in his speech a profound distrust of the Judges of the land which I thought was hardly courteous to the distinguished lawyer who sits behind him. He knows that the Judges of the land have the most important matters to decide; the fate of their fellow-subjects is in their hands, they have most complicated matters to unravel; juries hang upon their lips, and yet we are not to pass to a necessary Amendment of the law because there may be a Judge who has a crank, and who thinks the very mention of the word divorce indecent. I think that is hardly a reasonable fear to carry, that wholesome distrust of the profession of the law in which the noble and learned Lord has indulged. In some way I think that the noble and learned Lord has rather relied upon a technical argument when he taunts the supporters of the Bill with the fact that the present law has not been put in force. The present law is that somebody, who is willing to do so, may go to the expense of getting a solicitor and counsel and of collecting evidence and paying the expenses of witnesses and go before the Court in order to do what is not anybody's particular business to do, more or less to gratify the feeling which actuates him. The law has become too expensive for luxuries of that kind. It is a fearful thing now to be a public reformer. You must pay for the luxury out of your private purse. Therefore I am not surprised that the present law has not been put in force. 1445 But this legislation, at all events, if it is passed, will be very easily put in force, and will not cause much expenditure, as would be caused by proceedings under the existing law. That I think is itself a primâ facie recommendation of the machinery proposed in this Bill. There is another matter upon which both noble Lords dwelt, and I think they carried the House with them to a great extent in the remarks which they made. I refer to the jealousy which they professed of any extension of the power of committal for contempt. That is a feeling which we all experience, and I should be glad if in Committee other means than committal for contempt could be found for carrying out the decision of the Judge, because committal for contempt is an anomalous and elastic power. ["Hear, hear!"] I can remember one case in which it was very grossly abused, and it is always liable to abuse, and, what is more, it is liable to be suspected of abuse, arid therefore it may cause antagonism and indignation in the Courts of Law. Therefore I should be glad if any other way of dealing with the matter can be found. In discussing the evil to which the Bill relates we are rather hampered by the, disagreeable, character of the subject. It is precisely the class of cases to which the noble and learned Lord opposite referred, which produces to my mind the most flagrant evil that we have to deal with. The reason why the publication of that class of cases is so much to be deprecated is not merely because it offends our taste, and makes the reading of the newspapers disgusting, but because it is a well-ascertained fact that the publication of details in cases of that kind has a horrible, though undoubtedly direct, action in producing an imitation of the crime by other people. I remember a very distinguished doctor, who is now dead, telling me that he had observed that after one of these cases appeared in the newspapers he heard of numbers of cases of crime of the same kind which were not brought forward. There appeared to be a kind of epidemic in consequence of the case published. Therefore I think it would be a very good thing if that particular class of publication could be more restrained than now. I am not impugning for a moment the conduct of the more respectable newspapers; they 1446 are exceedingly careful, and their management of these matters is exceedingly creditable, but others are not careful and harm is done. It seems to me that after the Debate we have heard and the strong sympathy expressed with the object which the Bill has in view, our proper course is to read the Bill a second time and then to see whether the objections that have been raised cannot be met in Committee. ["Hear, hear!"]
THE EARL OF ROSEBERY
I do not rise to object in the slightest degree to the remarks made by the noble Marquess, except as regards his hinting that my noble and learned Friend near me had not given sufficient reflection to the Bill before he uttered sentence upon it. I think that in that suggestion the noble Marquess a little transgressed the courtesies of Debate in this House. Nor do I suggest that the course of referring this Bill to a Select Committee is not a wise and proper one. It is the usual shelf on which Bills are put in this House, and I do not think, judging from the course of the discussion and the weight of the opinions delivered against the Bill, that it is likely to pass into law. As a layman, it is a little difficult to intervene in a discussion of this kind; but there are matters connected with this Bill which seem to me to appeal to every civilian of common sense. The first point is this—is the evil as great as it has been asserted to be? I was five minutes late in coming to this House, and, therefore, I did not hear the opening remarks of the noble and learned Lord on the Woolsack, and in those five minutes he may have given instances which would prove that the evil, was very great. But, as a matter of fact, is it not within the knowledge of your Lordships that the amount of indecent evidence that is published in newspapers of large circulation is extremely small and a diminishing quantity? No answer has been made, and I believe none can be made, to the argument of my noble and learned Friend behind me, that the evidence published in country newspapers and given in cases of a most objectionable kind is at least as bad and as likely to provoke the imitation which the noble Marquess has referred to as any evidence that is printed in papers of a wider circulation. But over that evidence 1447 you will, under this Bill, have no control at all, and you cannot propose to establish any control over such evidence. No conceivable Ministry, no Lord Chancellor would dream of giving powers to a Bench of Magistrates to order what evidence should or should not be published. Then, what is it you are going to legislate for? You are going to legislate with respect to a corner, a fragment of an evil which is not itself great and which has a tendency to become less and less every day. ["Hear, hear!"] There is one more point for us to consider. Is not the proposed remedy in some degree worse than the evil itself? At present the state of things is this. There is in the papers, on very rare occasions, a certain, amount of evidence which is not altogether agreeable reading for ourselves and our families, and what is proposed to be done is to scotch the evil to some extent by allowing a part of this evidence to be suppressed on the order of a Judge. To the Judge, by-the-bye, if the argument of the noble Marquess is worth anything at all, we ought to be able to refer everything, for he spoke of the argument against the advisability of trusting this matter to the direction of the Judge as our argument against the character, wisdom and competence of Judges. I do not understand that that is at all what is meant by the argument. The noble Marquess, however, carried his argument so far that it would seem almost to do away with the necessity for juries. But when he came to another point he completely upset what he had previously said, because he declared that the power to commit for contempt of court was so dangerous and liable to abuse that it ought to be regarded with the greatest caution and suspicion. If, on the one hand, the Judge is so wise that everything may be intrusted to his discretion, and if, on the other hand, a very large measure of discretion is to be denied to him with respect to the subject of contempt of court, are we not placed in a position of some doubt with regard to the particular remedy which is suggested in this Bill? It has been pointed out by my noble and learned Friend that the Judge must be able to overtake the reporter as he flies to the newspaper office with his quota of copy, because he must be held to have allowed all that to 1448 be decent and proper to be published which he has not expressly forbidden to be published. This would be to place the Judge in a position of extreme difficulty. ["Hear, hear!"] Now, if you have to face these difficulties, would it not be better to leave the matter alone? Have we not a greater guarantee for the suppression of obnoxious evidence than this Bill would supply in the good sense, good judgment, and wise precautions of the Press itself ["Hear, bear!"] and in that by which the Press must be guided—namely, the wisdom and common sense of the public at large? It would be useless for us to vote against this Bill, because it is quite obvious that we should have no power to carry our views into effect. I am sure we shall readily concur in the proposal to refer it to a Select Committee, but we do think that it is worth more than the somewhat jejune and parsimonious consideration which apparently is all that has been given to a principle of such wide and far-reaching importance. ["Hear, hear!"]
§ LORD GLENESK
said that he should not have ventured to trespass upon their Lordships' indulgence were it not that he felt it to be his duty, on behalf of the profession to which he belonged, to give his reasons for opposing the Bill. In regard to its bearing upon the Press, he thought it as bad a piece of legislation as could possibly be introduced. [Opposition cheers.] It had been shown that it would be ineffective, that it only applied to the High Court, and to a certain class of cases. The great mass of the newspaper Press of England, of which many of their Lordships had been good enough to speak in high terms on public platforms, did take care to maintain its honour and reputation, and he entirely denied that the publication of objectionable matter was on the increase. On the contrary, the tendency was altogether in the other direction. ["Hear, hear!"] If they passed legislation of this kind they would not be able to stop at this point. He had seen more offensive matter in recent novels than he had ever found in any newspaper. His only object in addressing their Lordships was to urge his strong protest, in the interest of the profession to which he belonged, against the Bill. They ought not, however excellent their motives, 1449 to allow themselves to be betrayed into a wrong course of action, to deprive the Press of its liberties, and to ask Judges of different temperaments to decide which was right or wrong for publication. A Judge might strike out a piece of evidence upon which a whole case hinged. A Judge was not to be asked to look through a report and exercise a general censorship over it, but he must act on the instant. The Bill would subject the Press to a new tribunal by extending an arbitrary power to a Judge, and would interfere to a most dangerous extent with the liberty of the subject. He thought that it was most regrettable that such a Bill should ever have been introduced. [Opposition cheers.]
§ THE LORD CHANCELLOR
congratulated the last Speaker on his first appearance before their Lordships in the character of a defender of the liberty of the Press, and on the courage with which he had expressed his views on this subject. Dealing with the arguments which had been addressed to their Lordships, he said that he would start with the question of fact. As he had already said, he could not and would not reproduce a mass of indecent and obscene matter in their Lordships' House taken from newspapers. He thought that no noble Lord would be able to contradict him when he said that within the last two or three years cases had been published in the newspapers containing details of the most grossly indecent character. The publications containing those details had been spread through the country, causing, he believed, infinite mischief. ["Hear, hear!"] It was all very well for noble Lords to ask for the facts. No one who took the trouble to find out the facts for himself could doubt what he had stated; and he should like any noble Lord to get up in his place and say, upon his responsibility, that details which had been published from time to time in the newspapers were subjects which ought to be reported and which could properly and innocently be placed in the hands of those forming the family circle. ["Hear, hear!"] Lord Herschell spoke of the difference between obscene and indecent, and asked, if this was the objection, why not insert the word obscene as well as indecent? That was a point affecting the mere language of the Bill. The Lord Chief 1450 Justice was horror-stricken at the kind of unconstitutional innovation upon such principles as they had all been guided by hitherto. The names of three law officers and a Home Secretary were extant who brought in a Bill which was identical with the present Measure, except that when an order of the Judge was made the person guilty of disobeying it was guilty of a misdemeanour. That was a difference in the mode of punishment, but what was the difference between that method and the method employed in ordinary jurisdiction? From time to time in other matters an order was made by a Judge which resulted in the punishment of the person disobeying it; as, for example, when a person was ordered not to exhibit a particular placard, and disobeying the order was sent to prison. Another argument used was that they could not suppress the evil completely; therefore they should not do what they could to remove it. In two respects his noble and learned Friends had not sufficiently considered what the state of the law was. Petty Sessions could, if they chose, sit with closed doors, and they had been known to say "Unless this evidence is suppressed we will not allow the public to remain here." That was a power which could be exercised, and in proper cases would be exercised. But his noble and learned Friends did not seem to apply their minds to the fact that the condition of Petty Sessions sitting for investigation was totally different from the other case. The truth was that the evil only existed in causes célèbres, and the difficulty, danger, and mischief arose when those cases were being heard, as the most minute and most disgusting detail of every part of the evidence was brought forward. Lord Herschell said that they had then to trust to the Judges to say what was indecent or obscene. But did anyone believe that a Judge would, in the exercise of such a power given to him, say that the fact of A. B. having run away with C. D. was one which imported ill-omen and would be indecent? That was an extravagant objection, and led one to think that in the method of his advocacy his noble and learned Friend's sympathy with the Bill and its object appeared to have all but disappeared. He had never listened to so many sympathetic speeches in his 1451 life, and yet he found at the same time that every objection which ingenuity could devise had been urged against the Bill with the object presumably of aiding it. If his noble and learned Friend brought in a Bill he should be glad to help him, in order to see whether they could not make the present law more effective; but the policy he had indicated seemed to him to be one way of destroying the Bill. There was another mode of destroying the Bill, and that was to refer it to a Select Committee. He did not understand his noble Friend at the head of the Government to suggest that it should be referred to a Select Committee. [Several NOBLE LORDS—"Yes."]
§ THE PRIME MINISTER
I said it should be done either by reference to Committee of the Whole House, the Standing Committee, or a Select Committee.
§ THE LORD CHANCELLOR
said that the question at present was whether the Bill should be read a second time. Reference to a Committee might be a subject of discussion, hereafter, though he did not at present assent to the Bill going to a Select Committee.
§ LORD HERSCHELL
said that he had not intended to oppose the Bill, but as the Lord Chancellor thought that the Measure was perfect he felt bound to vote against the Second Reading.
§ The House divided:—Contents 48; Non-contents 21.
§ Bill read 2a accordingly, and committed to a Committee of the Whole House.