House Of Commons
Thursday, January 16, 1840.
Opening Of Parliament,—The Queen's Speech
The Parliament having been this day opened by her Majesty in person, the Commons were summoned to the bar of the House of Peers to hear the Royal Speech. On their return the Speaker read the Speech, and the House adjourned till four o'clock. On re-assembling.
having moved a new writ for Edinburgh in the room of the right hon. T. B. Macauley, who since his election had accepted the office of her Majesty's Secretary at War,
Principles Of The Ministry
said, that before the question was put, he wished to address to the Government a question which he had asked on the eve of the last prorogation, when he had inquired upon what principles the new Cabinet was to be constructed. That inquiry he now repeated. Having been informed that several Cabinet Ministers had resigned, or were about to resign, he had thought it would be no outrage on common decency or common sense to put the question just before the last prorogation, and on that occasion a Member of the Cabinet, whom he regretted not to see now in his place—he meant the right hon. Baronet, the President of the Board of Control—declared that the Cabinet was not to be reconstructed, and, therefore, there would be no alteration in its course of policy. Nay, the right hon. Baronet, not satisfied with that public declaration, condescended, with that courtesy which was characteristic of him, to cross the floor of the House, and to give as private information to him, that he had entirely misconceived the nature of the motion then before the House—that there had been no reconstruction of the Cabinet, and that he had been entirely misinformed. Yet, in a short time after the prorogation, nay, within twenty-four hours four Cabinet Ministers had either resigned or changed office, and among them was one not less eminent or distinguished than the noble Lord the Member for Stroud, who had been, and probably still was, the leader of her Majesty's Government in that House. Within a very few days after the proroga- tion, one of the new Members of the reconstructed Cabinet, the present Chancellor of the Exchequer, meeting his constituents to celebrate the triumph of his re-election, laid peculiar stress upon the principles of that body of men he several times described as the new Cabinet; not satisfied with the phrase of a reconstructed Cabinet, which he used, the right hon. Gentleman several times called upon his constituents to give renewed confidence to the new Cabinet, of which he was a Member. He thought, therefore, the facts which had occurred justified him in the assumption that the Cabinet had been reconstructed. Four months the reconstruction had occupied, and a few days ago he read in the newspapers that a noble Lord, not one of the late Cabinet—not one who had changed his office—but who was in every sense of the word a new Member, had lately taken the oaths to her Majesty. Now, he held it to be the paramount duty of the House of Commons to ascertain who were the responsible advisers of the Crown. That seemed to be an unfashionable opinion in the reformed House of Commons; but at the present time, when Ministers may have incurred a very great responsibility, and it was proper that there should be a frank and manly declaration of Ministers in that House, it was neither decent nor decorous that the Members of that House should be left to ascertain who were the responsible advisers of the Crown, from the tittle-tattle of the clubs, or the gossip of the newspapers. And although it might be alleged that the information might be acquired from the London Gazette, in answer to that he would remark that many changes might take place in the Cabinet which never appered in the London Gazette. Why the present Ministers had deviated from a course that had been uniformly pursued by these who had preceded them in that House? He asked why there was any deviation from the usual course? A Cabinet was never changed or reconstructed without Ministerial explanations; and the greatest authorities had laid it down, and in particular Lord Grenville, that when a Cabinet is reconstructed, it was necessary to enter into explanations, even when an open change took place in the Government; but in changes of individual Members there was more necessity for explanation, to avoid the imputation of intrigue. Since the Reform Bill had passed, twelve Cabinet Ministers had resigned without affording any satisfactory explanations. He wished to know who were the respon- sible advisers of the Crown? He again asked who were her Majesty's Ministers? Would those noble Lords or hon. Gentlemen who were Cabinet Ministers hold up their hands? What place did the noble Lord the Member for Stroud fill? Was he still the leader of the Government in that House. Nobody could tell from the Gazette, and, therefore, he thought the present was a fit opportunity to repeat the question, and with anxiety he hoped to be favoured with an answer.
No reply was given.
Motion agreed to.
Privilege—Stockdale V Hansard
said, that it was with great regret he felt himself impelled by a sense of duty to interpose before the reading of the Speech from the Throne, more especially upon the present occasion. But it was a duty, the performance of which, he could not avoid, as it was incumbent upon him, as a Member of that House, to regard its rights and privileges. There had been placed in his hands, a petition of Messrs. Luke and James Hansard, styling themselves, and properly styling themselves, the printers of that House, and containing matters of grave and deep importance to the rights and privileges of that House. So much, however, depended upon an accurate statement of the facts contained in the petition, that he thought the best course which he could pursue, and the best mode of performing his duty to the House, was to request, that the petition be read from the Table, rather than attempt to enter substantially into its details. He would content himself at present with stating that the petition related to certain proceedings which had taken place in consequence of an order given by that House on the 1st of August last, by which order the petitioners conceived themselves to be bound in an action, which had since taken place, with regard to certain publications sold by them according to the order of the House, and it appeared by the petition that certain goods, their property, had been taken in consequence of their acting in obedience to that order. His Lordship concluded by moving that the petition be read.
Petition read as follows:—
" To the Honourable the Commons of the United Kingdom of Great Britain and Ireland in Parliament assembled.
"The humble petition of James Hansard,
Luke Graves Hansard, and Luke James Hansard, printers to this honourablehouse
"Showeth, That your petitioners communicated to your honourable House on the 6th day of February, and 1st day of June, 1837, respectively, the legal proceedings taken by John Joseph Stockdale against your petitioners, for the publication of certain parliamentary papers and reports.
" That on the 30th day of May, 1837, your honourable House passed the following resolutions:—
1. That the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially of this House, as the representative portion of it.
"' 2. That by the law and privileges of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the institution or prosecution of any action, suit, or other proceedings, for the purpose of bringing them into discussion or decision before any court or tribunal, elsewhere than in Parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.'
"That on the 31st day of July last, your petitioners also communicated to your honourable House, that similar proceedings were threatened against your petitioner, by Mr. Charles Shaw, attorney, on behalf of Mr. Polack, for the publication of certain other parliamentary papers and reports.
"That on the 1st day of August. 1839, your hon. House passed the following resolutions:—
"'1. That Messrs. Hansard, in printing and publishing a report and minutes of evidence on the present state of the Islands of New Zealand, communicated by the House of Lords to this House, on the 7th of August, 1831, acted under the orders of this House; and that to bring, or assist in bringing, any action against them for such publication would be a breach of the privileges of this House.
"'2. That Messrs. Hansard be directed not to answer the letter of Charles Shaw, mentioned in their petition, and not to take any step towards defending the action with which they are threatened in the said letter.'
"That jour petitioners have subsequently been served with legal process issued out of the Court of Queen's Bench, at the suit of the said John Joseph Stockdale, in a third action for damages in libel.
"That the said process was issued by the said John Joseph Stockdale, in person, on the 26th day of August last, but the subsequent proceedings were carried on by Thomas Bur- ton Howard, of No. 7 Norfolk-street, Strand, London, as attorney for the said John Joseph Stockdale, the plaintiff.
"That the cause of action is for the publication of printed parliamentary papers, as in the two previous actions.
"That your petitioners, on the 27th of August last, addressed a letter, as set forth in the schedule hereunto annexed, to the Right Honourable the Speaker, informing him of the said action; and that your petitioners received personally from Mr. Speaker instructions to conform strictly to the above resolutions of your honourable House.
"That, in consequence of the above-mentioned resolutions of your honourable House (dated respectively the 30th May, 1837, and 1st August, 1839), respecting the publication of papers under the authority of Parliament, your petitioners were advised that it would be contrary to their duty to appear and plead to this action in the absence of instructions from your honourable House.
"That your petitioners were advised that they should act more consistently with the resolutions of this honourable House, in not defending the said action, but your petitioners deemed it to be proper to give formal notice to the said John Joseph Stockdale, and to all persons assisting in prosecuting and carrying on such action, of the resolutions of your honourable house of the 30th of May, 1837, and 1st of August, 1839.
"That the said John Joseph Stockdale, by his said attorney, on the 26th day of October last, filed a declaration in the said action, wherein the damages were laid at 50,000 l., and on the 1st day of November last signed interlocutory judgment in such action for want of a plea.
"That your petitioners again caused notices against proceeding with the said action, together with copies of the said resolutions, to be served through their solicitors, Messrs. Parkes and Preston, upon the said John Joseph Stockdale and his attorney.
"That notwithstanding such notices, the said John Joseph Stockdale and his said attorney proceeded in the said action, and on the 2nd day of November last served your petitioners with a notice, purporting that a writ of inquiry of damages would be executed before the sheriff of the county of Middlesex on the 12th day of November last.
"That your petitioners thereupon caused further notices, together with copies of the said resolutions of your honourable House, to be served upon William Evans and John Wheelton, esquires, sheriffs for the said county of Middlesex; and also upon Thomas France and Henry Jackson, esquires, under sheriffs for the said county, and also upon James Burchell, esq., deputy under-sheriff for the said county, calling their attention to the sand resolutions of your honourable House, an warning them against proceeding in the said action.
"That, in consequence of the said notices, the sheriff on the 8th of November last, made an application, supported by affidavit to the full Court of Queen's Bench, praying the court to enlarge the return of the said writ of inquiry; of damages until after the meeting of your honourable House, which said application was directed to be made in the Bail Court, and was heard the day following, and the subsequent court day, by Mr. Justice Littledale, at Westminster, who refused to make any order.
"That the writ of inquiry of damages was accordingly executed on the 12th day of November last, in pursuance of the notice, when the sheriff's jury (Mr. James Burchell presiding) assessed the damages at 600 l.
"That your petitioners subsequently caused further notices, together with copy of the said resolutions, to be served upon the sheriff, under-sheriff, and deputy under-sheriff, before: named, warning them against making any return to the said writ of inquiry.
"That the said John Joseph Stockdale caused an application to be made to the Court of Queen's Bench for a rule to compel the sheriff to return the said writ of inquiry, which was ordered accordingly.
"That on the 23rd day of November last, a writ of fieri facias was issued by the said John Joseph Stockdale, and lodged with the sheriff, who thereupon entered upon the printing-office and premises of your petitioners, situate in Whetstone-park, Lincoln's-inn-fields, and took possession of your petitioners' stock in trade, goods and chattels therein.
"That your petitioners caused further notice, together with copies of the said resolutions, to be served upon the sheriff, under-sheriffs, deputy under-sheriff, before named, and upon William Hemp, bailiff, warning them not to sell under the said writ of fieri facias, nor to make any return to such writ.
"That on the 25th day of November last, the plaintiff served the sheriff with a judge's order to return the said writ of fieri facias into the Court of Queen's Bench; and the said sheriff made their return on the 29th November last, slating 'that they had caused to be seized divers goods and chattels of your petitioners, which remained in their hands unsold for want of buyers.'
"That on the 2nd day of December last, the plaintiff issued a writ venditioni exponas, directing the sheriff to proceed to a sale of your petitioners' goods and chattels, whereupon the sheriffs, through their bailiff, Mr. William Hemp, of Serle's-place, Carey-street, London, and Mr. James Crook, of Skinner-street, Snow-hill, auctioneer, forthwith advertised your petitioners' goods and chattels for sale by public auction.
"That the return day of the said writ of venditioni exponas was, upon application by the sheriff to a judge at chambers (Mr. Justice Littledale), enlarged until the 19th of December last.
"That the sheriff fixed the sale of your petitioners' goods and chattels to take place on the 17th December last, and gave public notice thereof by advertising the same in the public newspapers and otherwise.
"That on the 16th day of December, the said William Hemp addressed a letter to your petitioners, apprising them of an offer of 695 l. made by Nicholas Winsland, of Great Russell-street, Bloomsbury, builder, for the first eleven lots of the goods of your petitioners advertised for sale, and requesting to know if your petitioners could provide a better purchaser, and that your petitioners replied thereto, repeating their protest, and informing the said William Hemp that they could not provide a better purchaser.
"That on the evening previously to the day of sale, the sheriff sold and disposed of the goods and chattels of your petitioners for the sum of 695 l. the amount of damages with costs, and executed a bargain and sale thereof to Nicholas Winsland, of Great Russell-street, Bloomsbury, builder; and the said Nicholas Winsland paid the full amount of the said consideration money to the said William Hemp.
"That your petitioners caused further I notices, together with copies of the said resolutions, to be served on the sheriff, under-sheriff, deputy under-sheriff, the bailiff, and auctioneer, requesting them not to pay over the said sum of 695 l. or any part thereof, to the said John Joseph Stockdale, now to any other person.
"That on the 20th day of December last, the said John Joseph Stockdale obtained a judge's summons, requiring the sheriff to show cause why they should not pay over to him the debt and costs so levied and raised of the goods and chattels of your petitioners as aforesaid; and on the 26th day of December; last, Mr. Justice Patteson, on the hearing of the said summons, declined to make any order, on the ground (as your petitioners are informed) that it was an application which ought to be made to the full court, and not to a judge at chambers.
"That, on the 11th day of January instant, the said John Joseph Stockdale caused an application to be made to the Court of Queen's Bench, supported by affidavit, for a rule to compel the sheriff to pay over to him the amount of damages and costs in the said action.
"That the court, upon such application, granted a rule, calling on the sheriff to show cause, on Friday, the 17th day of January instant, why he should not pay over the said amount of damages and costs, together with costs of the application, to the said John Joseph Stockdale.
"That the sheriff has been served with the said rule, and the said rule will come on for argument on Friday or Saturday next, or so soon after as counsel can be heard.
"That on the 13th of January instant, your petitioners received a letter from Messrs. Burchell, deputy under-sheriff and agent, enclosing to your petitioners a copy of the rule.
"That your petitioners beg leave respectfully to apprise your honourable House of the above-mentioned proceedings of the said John Joseph Stockdale, and that they may be permitted to lay before your honourable House copies of the various notices given by your petitioners, together with copies and reports of all proceedings taken by the said John Joseph Stockdale and the sheriff, for the information of this honourable House.
"That the said sum or levy of 695 l. now remains in the hands of the said sheriff.
"Your petitioners therefore humbly pray such relief in the premises as to your honourable House shall seem meet.
"LUKE GRAVES HANSARD,
"LUKE JAMES HANSARD.
"16 Jan., 1840."
Petition to be printed, and taken into consideration on the next day.
said he had a further motion to make, for it was incumbent upon the House to lose no time in coming to a decision upon this question. Indeed, it was hardly necessary for him to urge the importance of so doing, for every Member must be fully impressed with the necessity of coming to some speedy decision. He need only say, that whichever way the House decided, the question was one which could not possibly be left in the position in which it at present stood. It appeared from the statement of facts contained in the petition, that property of the petitioners to the amount of 690l. had been seized. That seizure had taken place in consequence of their acting in obedience to the orders of that House, and the money received for the effects was now in the hands of the sheriff. There appeared to him many ways in which the House might dispose of this question. They might act upon their ancient and undoubted right, and vindicate the violation of their privilege by the ancient mode of commitment. That was, in his mind, the most constitutional course, and the one most consistent with the dignity and privileges of the House, There were, however, various other modes of proceeding. The House could, if it thought fit, direct the Messrs. Hansard to plead in all cases of future action, and thereby bring the question of privilege before the courts. They could also adopt another course, and abandon all their privileges, as a learned Gentleman had suggested, and confine all their papers to a circulation among the Members only, or they might proceed, if they thought it necessary to have the papers circulated for general use, to provide for the settlement of the question by a bill brought in for that purpose. There were other courses also which could be adopted, but upon which he would not then enter. Their present position, however, was one in which no person would say they ought to continue. They could not continue to print and circulate for general use and distribution papers containing—as the proceedings which took place under what might be called the grand inquisition of the nation must contain—complaints and grievances comprising much criminatory matter, without any answers being set up. The consequence of such a state of things must be, that the persons who felt themselves aggrieved would proceed at law, and no defence being set up, the printers of the House would, as in the present instance, be mulcted to a large amount in consequence. He was satisfied, that no person could contemplate the continuance of such a state of things. He should therefore move, that certain persons mentioned in the petition be summoned to the bar of the House, when any Gentleman could question them as to the facts stated, and it would be in the power of the House to adopt that course which, under all the circumstances of the case, it might think proper to pursue. He should first move, that John Joseph Stockdale, the plaintiff, be called; next Thomas Burton Howard, his attorney in the case; then William Evans, the sheriff, together with his under-sheriff, and the deputy under-sheriff, Mr. Burchell, who presided at the trial. He should also move for the attendance of the bailiff who acted in the case. The noble Lord concluded by moving, that John Joseph Stockdale be summoned to the bar on the following day.
said, that as the noble Lord intended to follow up this motion by moving for the attendance of the others whom he had named, and requiring the attendance of the sheriff, he feared that; such a course would only tend to throw additional difficulties in the way, which he would shortly state to the House. He fully concurred in the opinion, that things could not remain in the state in which they now were. It was decidedly necessary that some step should be taken. No one was more disposed than he to assert and vindicate the just privileges of the House; but it was impossible to disguise the fact, that if the sheriff were to be called, to the bar and committed, they must proceed much further and come into collision with the judges, or else give up all claim to these privileges. It would be impossible for the House to come to anything like a fair discussion of the question without first taking a short review of the law as related to this case. After a careful investigation of the authorities upon the subject, he felt himself in a condition to state to the House what his impressions upon it were. They were not now upon a question of personal privilege, which should be altogether left aside, unless as it might be useful in the way of illustration. The question before the House was upon their right to authorize the publication generally of whatever papers they chose to print, and their right to sell those papers to whoever chose to buy them, no matter what their contents. They had first to inquire if they possessed the power of commitment, and if the party committed could be released upon a habeas corpus. That was a question which might be very much narrowed between them and the person bringing the action, it was not disputed by any body, although he believed it had been, as he thought, erroneously asserted, that the Lord Chief Justice had disputed it, that that House possessed the power of committing any person for a breach of its privileges. That it did possess that power was undoubted. The first case to which he would refer was that of Lord Shaftesbury where the commitment was by the House of Lords. The judges were of opinion that it was not a good commitment upon the face of it; but they felt themselves bound by the power of the House, and refused to examine the commitment or to release Lord Shaftesbury. The House of Lords ultimately rescinded their own resolution as to that noble Lord. He saw no difficulty on that account, because the House had the power to do so, and the circumstance of its rescinding an improper order showed, that if it went wrong, it was willing, and had the power to correct its own mistake. In the case of "Ashby and White," it was held by five judges, although disputed by five others, and decided by the House of Lords, that an action could be maintained against a returning officer for rejecting a man's vote. It was considered to have been a breach of privilege. The question was decided by the House of Lords in a judicial way, and the result was, that other persons brought similar actions. Patey was one of those who brought a similar action, and that House committed him for a breach of privilege in bringing the action, although it was precisely similar to that brought by Ashby, in which the judgment had been reversed, and in which the House of Lords had decided that an action could lie. Upon the commitment in this case, called the Aylesbury case, a habeas corpus was sued out for Patey, and the question came before the Common Pleas. Lord Chief Justice Holt was of opinion that the commitment was bad, and ought not to prevail. He held that all privilege was subject to examination, and that the act of commitment was an illegal act; but he was opposed by Lord Chancellor Cowper and eleven of his brother judges. The effect was to establish the power of that (the Commons) House to commit for breach of privilege beyond the possibility of being questioned by any other court and that no court had the power of doing so. It was incident to every such court to have the power of commitment for contempt, and it alone was judge of what was contempt, and what not. In the case of Alexander Murray, who was committed for contempt generally, Judges De Grey, Wright, Denison, and Foster refused to release upon habeas corpus, and spoke strongly in favour of the power of the House. In the case of Crosby who was committed for contempt, in committing the messenger, the judges remanded him upon a habeas corpus, and spoke strongly in favour of the powers of the House, The next question was, supposing the commitment to be illegal, could the parties suffering under it maintain an action for assault or false imprisonment? The authorities upon the subject clearly settled that they could not recover in such action. Chief Justice Pemberton and Mr. Justice Jones had decided the question, as shown by the case of "Jay v. Topham." In the case of "Burdett v. Abbott," Lord Ellenborough said that there was no instance of such an action for damages brought, or suggested, as fit to be resorted to; and Mr. Justice Bayley showed that doing so, would be directly to question the judgment of the House of Commons, and that it would be absurd to give damages for an imprisonment from which the court could not release the party. He took it, therefore, to be settled, that that House had the power to commit, and that no authority could examine into that commitment; likewise that no man could maintain an action of assault or false imprisonment in consequence of that power having been duly exercised. He said duly exer- cised, because the officers, if they exceeded the authority imposed upon them in the execution of the writ, were amenable at common law, and no power of that House would protect them from the recovery of damages. The great question then remained as to what were the rights of that House incidentally, if an action were brought for damages. The result of his investigation was, that a resolution of that House was of no avail in a court of justice upon an action brought upon a commitment, and that it was the duty of the court, the case being brought before it, to inquire into and decide it. In the cases he had referred to, the courts heard and decided, but did not examine the validity of the commitment. He would now quote two others, and set off one against the other. In the case of "Barnardiston v. Soame," an action against the returning officer for a double return, and which was ultimately held not to lie, Chief Justice North said they should be cautious how they interfered with the privilege of that House, one of the greatest that existed, of deciding upon its own privileges. The other case was that of "Benyon v. Evelyn," in which Chief Justice Bridgman said that resolutions of either House of Parliament did not bind the judges, who were obliged upon oath to give judgment according to what they considered to be law, though their judgments should be contrary to such resolutions. The next case to which he would refer was that of "Ashby v. White," a case which would enable the House to understand the question more clearly. The plaintiff brought his action against the defendant, a returning officer, for refusing to take his vote. Chief Justice Holt, who was always against the privileges of the House, was of opinion, although there were eleven judges and the Lord Chancellor against him, that the action would lie. Upon an appeal from the decision that the action would not lie, to the House of Lords, in its judicial capacity, the judgment of the court was reversed. That case involved the question of a breach of privilege of that House; for it had voted that it was a breach of privilege to bring the action. When the action had failed in a court of common law that House had voted that it would be a breach of privilege to proceed with it, notwithstanding which an appeal was made to the House of Lords sitting judicially, and they decided against the resolution of the House of Commons. The House of Commons had ne- ver reversed that decision. How, then, did the case stand? The House of Lords, as a court of justice, would not attend to their resolution. The House of Lords was bound to decide precisely in the same way in point of law as the court of law ought to have decided. The House of Lords were not to decide politically, but judicially, and precisely as if they were a court of law. The House of Lords, had, in fact, already refused to attend to their privileges, and had decided as a court of law upon them. How then, could they ask the Court of Queen's Bench, as a court of law, to attend to their resolution, when the House of Lords would decide against them, if the law justified their doing so? Let them, therefore, observe the situation in which they placed the court below. If it even decided for them, there might be an appeal, and the House of Lords might decide against them, notwithstanding their resolution. He consequently found himself under the necessity of admitting that no resolution of that House could bind a court of law in its decision of a question upon an action which involved the privileges of that House. The Banbury peerage case showed that no resolution of the House of Lords was binding upon a court of law. The case was deckled by the Chief Justice and the Court against the resolution of the Lords, who had not the matter of the Peerage regularly before them. There were five judges for the judgment, and four or five against it. The Lords voted in parties, and the Whigs beat the Tories for Lord Wharton, who had the interest in the borough. Many judges had held that the privileges of the House of Commons coming incidentally before the courts must be examined. The exceptions were commitments, and actions after them for false imprisonment. Chief Justice Holt, as all knew, was against the powers of the House generally. Powell was of opinion that the court was bound incidentally to examine questions arising upon actions: Bridgman was strongly opposed to binding courts of law by resolutions of that House. De Grey and Gould thought similarly. Kenyon had said that cases would arise which the court would be bound to investigate; and Lord Ellen-borough expressly declared that cases might arise in which the court would be bound to examine into the question of privilege, and decide against it. He believed he had stated all he intended as to the power of the House regarding its commitments and resolutions, and he would now briefly call attention to its right of publishing papers which might prejudice other persons. The question might be narrowed into this—could the House print and publish papers generally, and which reflected prejudicially upon the character of others? He would instance a case. A man presented a petition full of defamatory matter against another person. It was printed for the use of the Members of the House, and it was held by Lord Ellenborough and Mr. Justice Bayley, after much consideration, in the case of "The King v. Creevy," to be lawful to have done so, because it was the customary proceeding of the House. It was also held that the Speaker was not liable to an action for ordering the printing or publishing of a defamatory paper by order of the House. In Williams's case it was decided otherwise, but held by all to be bad law, and was struck out of the Bill of rights, as a disgrace to the country. But the person whose petition was published, and the venders of it, were held to be liable, and not protected by the resolution of the House. In the case of "The King v. Dangerfield" the defendant was convicted of a libel. Lord Peterborough brought actions against Speaker Williams, Dangerfield, and seven other persons, and recovered above 6,700l.. besides costs. All agreed that the action was bad in law against the Speaker, but valid against the publishers. The right hon. Gentleman then quoted the case of "The King v. Wright," who had published a report of a select committee of the House of Commons. On an application for a criminal information against him for a libel contained in the report, Lord Kenyon held that the court could not grant it. Lord Ellenborough had also in a subsequent case expressed an opinion on this subject which he would read to the House. His Lordship, in "Rex v. Creevy," said, in reference to Lord Kenyon's observations in "Rex v. Wright,"—
Such was the opinion expressed by Lord Ellenborough. The only other case that bore upon the point was that of "Rex v. Abington," and "Rex v. Creevy," in the latter of which an action was brought against Creevy for the publication of his own speech after it had been delivered in that House. In that case, as the speech contained matter injurious to an individual it was held that Creevy was liable to indictment. That was a strong case. If the speech was published without malice, it was hard that he should be held liable for publishing that which he had a perfect right to state in his place in Parliament; but so it was decided, and the decision was held to be law. A Member might make in that House what statement he pleased; but when he went out of that House, and published his speeches delivered within its walls, he was liable to an indictment if he published what was injurious to individuals, but which he had an undoubted right to state before the House. This brought him to that part of the question which had reference to the authority of the House. Now, his opinion was, and he stated it with all humility, and with a sincere desire to give every aid and assistance in his power in forming a right decision on this most important subject—his opinion was, that even in a court of common law the judges would have been hound to decide this case of Stockdale had it been brought before them. What then should the House do? Were they to bring the sheriffs to the bar? and how would they proceed then? He was of opinion that the judges were bound to give a decision when the question was once brought before them. Then could the House commit the judges? No. He would distinctly say that that House would disgrace itself for ever if it ventured to call the judges to the bar. They could not bring the sheriffs to the bar and stop there; but they must proceed further. If the sheriffs came before them, the House would ask if they had the money? The answer would be yes. The House would then desire them not to part with it; but what would be the result? Why, within four days the sheriffs would be compelled to deliver up the money by the laws of the land. The sheriffs by law would be forced to do that which the House had ordered them not to do. Now, was the House prepared to commit the sheriffs? Why, in four days, if they did not pay the money when ordered, they would be committed by the Court of Queen's Bench. What then were the sheriffs to do? If they obeyed the orders of the House, they would be committed by the Court of Queen's Bench; and if they obeyed the orders pf that court, were they then to be committed by that House? The House was to send them to prison, if they did not comply with its mandates, and if they obeyed those mandates, then would they be committed by the Court of Queen's Bench to the prison of that court. Was that a situation, he would fearlessly ask, in which the sheriffs ought to be placed? Let the House reflect that their present position in regard to this matter was the result of their own conduct, and was it, therefore, right or proper, that they should now visit on the executive officers of justice all the unfortunate consequences of their own delay? Such a course would be most unjust, and could not fail to prove injurious to the character of the House itself. In the first action which was brought the House had allowed the proceedings to go on, and the judges were bound to decide on the question which was brought before them. In the next, the House had refused to appear, and judgment had been allowed to go by default in consequence. He had always thought that an unwise proceeding, and he was persuaded that it had added much to their embarrassments. By allowing judgment to go by default, they had confessed that there was a ground of action and the consequence of that had been, in his opinion, very injurious. In the first instance, when the case was before a jury, it was pleaded that Stockdale was not the injured person he had been represented, and the jury had found, that that was true, and no damages had been given. But the House had not appeared in the second case, and other parties had then become jealous of their privileges and authority as well as the House of Commons. The jury might, no doubt, have been offended that no appearance had been made by the House and, at all events, in the next case, they had given 100l. damages, and, in the last case, 600l., and from what he knew of the spirit and independence of the juries of this country, he had no hesitation in saying, that, if they went on, they would, in the next case, give 6,000l. Their own conduct had brought them, therefore, into their present position, and now they were to proceed against the sheriffs, and bring them to the Bar of that House for doing that which in law they were bound to do. He was decidedly against that course, and should oppose it. Let them call Stockdale to their Bar, if they would, and he should not oppose such a course. Stockdale had already beaten them on their own grounds, and they could go to the House of Lords if they would. In the case of "Burdett v. Abbott" they had followed the proceedings; to the House of Lords, and they had in that case been successful. But suppose the Lords had decided against them, what in that case would they have done? The House might pass a resolution, and the judges would overrule it, and if they went to the Lords, the Lords would be obliged to follow the same course, if the resolution; was contrary to law. What course, then, were they to follow? He would suggest, that the House, before proceeding farther, should have a conference with the Lords. By so doing, this House would be submitting to no degradation. It would not be submitting the question of its privileges to the House of Lords, but it would, on a point of law, be taking the opinion of the highest tribunal which the country recognized. As he had before said, he was of opinion, that the House had a right to publish this particular paper, but the evil had arisen from the resolution of the House, ordering the sale of the papers printed for the use of the Members. No one could read the judgments of the learned judges without being impressed with the opinion that the character of the publication had been in their estimation materially affected by the circumstances of these proceedings being sold in the manner they had been. The House, in fact, were now acting in the character of booksellers; and although formerly the public could obtain copies of certain parts of their printed papers, yet they could not then, as in the case of Stockdale, purchase as many copies as any individual might choose. How many copies of the libel against Stockdale I had that individual purchased, or could anybody doubt that he had purchased more copies than one, or that he was ready to proceed with another action when the present was settled? His humble opinion, therefore, was, that the House should, as a preventive measure, rescind the resolution I authorizing the sale of its papers. The 1 right hon. and learned Gentleman concluded by saying that he should oppose the motion for ordering the sheriffs to the Bar of the House."That what was printed for the use of the Members was certainly a privileged communication; but he was not prepared to say, that to circulate a copy of that which was intended for the use of Members, if it contained matter of an injurious tendency to the character of an individual, was legitimate and could not be made the ground of prosecution. He would hesitate to pronounce it a proceeding in Parliament in the terms given by some of the judges in that case."
hoped the Attorney-general, or some other Member of the Government, would rise before the debate closed, to answer, or rather to attempt to answer, the able speech of his right hon. Friend who had just sat down. The Attorney-general there, as well as in the Court of Queen's Bench, had upon his case, allowed judgment to go by default, and he hoped he would yet rise to state his opin- ions to the House. He had indeed summoned officers of that court to the bar, but he had not yet defended that measure, or any other of his proceedings in the matter. He took that opportunity of rising, because he remembered that Sergeant Wilde said, in a memorable speech which he had delivered on this subject last Session—[Cheers.] (Hon. Gentlemen opposite might cheer, but everything memorable was not necessarily good.)—Sergeant Wilde had said, that this was not so much a question of law, as of general constitutional principles; and it was because such was the case, that he now took the liberty of addressing the House. He was surprised that the noble Lord (Lord J. Russell) had not had the courage to add two more to the motions which he had submitted to the House. He was surprised, that he had not had the courage in the first place to add the names of the jurors, who had decided on the case to the list of those whom he was to bring to the bar of the House. The noble Lord had not ventured to take that step; he had felt that he dared not advance so far. The noble Lord was contented to move for the appearance of the mere Ministerial officers who had acted on this occasion; but he did not dare to move for the appearance of the twelve honest jurors who had given the verdict. Neither had he dared to move, that the judges, that the Lord Chief Justice of England, should be brought to the bar. Why did he assert that the noble Lord dared not have done so? He made that assertion because the noble Lord had the power to add these names, and had not expected it, though if any were culprits, those who gave the damages and those who ordered the enforcement of them, were far more guilty than the mere executive officers of the court who were sworn to obey its orders. Those officers were to be punished for obeying the law, for complying with the writ of the court; and was the noble Lord, was the Attorney-general aware, that the writ which the sheriffs had to execute was issued in the name and under the authority of their common mistress? The sheriffs had nothing to do but to obey the orders of the court. The moment the writ was in their bands they were bound to obey it. But had the House really exhausted all the legal measures which could be adopted under the circumstances? They had been contented with one trial, and he begged to ask the Attorney-general whether, had he moved for a writ of error he might not have had the opinion of all the judges on this important question, or of the House of Lords? If the question had been referred to the fifteen judges, did the Attorney-general believe, that all those learned personages were hostile to that House? If the case had been referred to the fifteen judges, the Attorney-General would not have been in a worse position than he was now, and he might have been in a better. Did the Attorney-general believe, that the whole of the judges would have been against him? If he did, what an admission was that for the first law officer to make—viz., that the measures which he had recommended to the Government were such as all the judges would pronounce illegal? If, on the other hand, the Attorney-general believed, that he would have had a majority of the judges in his favour, he should have referred the case to their decision, and he would then have been in a better position than he now was, even at the worst, he could then have had recourse to the House of Lords. But instead of pursuing that course, the hon. and learned Gentleman had suffered judgment to go by default, and thus compelled the defendant in the action to admit the injury: and now they turned round, not on the jury who had given the verdict, not on the judge who had tried the case, but on the sheriff and deputy sheriff, who had only executed the orders of the court. He could not conceive anything more shabby, or anything more unworthy of that House, than to suffer the jury and the high legal officers to escape, because the noble Lord felt he dared not attack them, and content themselves with the easy process of calling to the bar the sheriff and deputy sheriff of Middlesex, whom they thought they could frighten into obedience. Taking such a view of the case, and feeling that they had entered into a contest in which they could obtain no honour, but in which they would only sink deeper and deeper in degradation, he would once more earnestly call upon the House to pause before proceeding further. If they were prepared to proceed to the last extremities, let them well consider what those extremities were In the first place, the large mass of the people, who were so much and so justly attached to the jury system, would be against them. In the next place, the powerful body attached to the courts of law would be against them; and, in the third place, they would be brought into collision with the House of Lords. There had been periods, and within seven years, when the noble Lord opposite might have cheered on this House to a collision with the House of Lords. That time happily had passed away. But the noble Lord however averse he might now be to such a crisis must not expect that a question like the present could be determined without such a collision. He had already accused the noble Lord of want of political courage for not attacking the chief justice. Would the House summon the chief justice of England to the bar? No. The House knew that the utmost it could do would be to send up a message to the House of Lords, praying that their Lordships would give leave to one of their Members (naming him) to attend at the bar of the House of Commons. Suppose the Lords should refuse—did the House mean to say—did the noble Lord mean to say, that a vote of the House of Commons could pass authorizing the Speaker to issue his warrant to compel the attendance of the chief justice of England. He wished that hon. Gentlemen would only consider for a moment how far they were prepared to follow up this resolution. Was the noble Lord prepared to move, that the Speaker do issue his warrant to the sergeant at arms to seize Lord Denman upon the bench, and to bring him to the bar of that House. It was vain fur the House to endeavour to disguise from itself, that it was at that moment on the brink of a proceeding in which further advance would serve only to plunge it deeper in degradation. He trusted, therefore, that before the House consented to go further, it would seriously consider not merely the motion now before it, but the means by which that motion was to be followed up. With that feeling, he should support his right hon. and learned Friend, in meeting the noble Lord's motion by a direct negative.
If I had taken no part in this debate, I think I might have been excused by the House, seeing that I am within an hour of my return from the discharge of very important official duties —duties which, for the last three weeks, have entirely absorbed my attention—duties which must have come within the knowledge of every member of the House, and which I have performed to the best of my ability, endeavouring, on the one hand, to protect the interests of the Crown, and on the other to preserve the interests of the public. Thus engaged, I was ignorant of what had been done in the case of Stockdale v. Hansard. I was even ignorant of the course which my noble Friend proposed to pursue, until I entered the House this evening. I have, however, not the slightest hesitation in rising in my place, and saying, that I entirely approve of the motion of my noble Friend. And unless that motion be carried, I think that the privileges of the House will be for ever lost. I think that our usefulness will be at an end, if we abandon our privileges; if we succumb upon this occasion, I think we shall be guilty of treason to those who sent us here. We are bound to defend our privileges, and in defending them, to follow up the precedents which have been set us by those who formerly represented the people of England, and were the defenders of their liberties. Has the hon. Baronet, the Member for the University of Oxford (Sir R. Inglis) or the right hon. and learned Member for Ripon (Sir E. Sugden) made any proposition as to what ought to be done? Some course of action is imperatively necessary. The question is, what course shall be adopted—what course is most likely to prove beneficial? Will the House allow the damages to be paid by the Sheriff to Stockdale? Will the House allow a fourth action to be brought by Stockdale against its own officers, in which, as has been stated, the damages may be laid at 10,000l.? Will the House allow any person to bring an action against its own officers for what has been done in obedience to its own orders? Mr. Hansard is the printer to the House of Commons. He has acted under the orders of the House of Commons. An action has been brought against him for what he has done in pursuance of the orders which the House has given him. Will the House allow the damages awarded in that action to be levied upon his goods? Will the House allow the money to come out of Mr. Hansard's pocket, or will it say that the sum shall be included in the estimates for the year, to be paid out of the revenue of the country? If you do that, you not only abandon the right of publishing that which you conceive to be necessary for the public good, but you totally alter the position in which you have hitherto stood. You subject yourselves not only to the judgment of the Court of Queen's Bench, but to the judgment of every other inferior tribunal throughout the whole of the country. A similar action to that brought by Stock-dale in the Court of Queen's Bench might be brought in a court of requests, in a borough court, or in any of the manor courts in any part of the country, and each of these courts would have an equal right with the Court of Queen's Bench to decide upon your privileges. If the position assumed by the right hon. and learned Gentleman be correct, then an action may be brought against any officer of this House, and if he pleads privilege, it is competent to any of the inferior tribunals to which I have referred, to overrule the point of privilege, and to execute judgment. It is to be remembered, too, that the question does not confine itself to civil proceedings, but extends to criminal; and Mr. Hansard, instead of having an action brought against him in the Queen's Bench, may be indicted either at the Central Criminal Court, or at any court of quarter sessions in the kingdom. According to the doctrine of the right hon. Gentlemen who have just addressed the House, it would be no defence to say, that he had acted in obedience to the orders of the House; he may be found guilty of libel, and be subject either to fine or imprisonment. If you abandon this privilege, you will allow every other privilege you possess to be brought in a similar way under the judgment of another tribunal. Your messenger, who enters a house for the purpose of obtaining the attendance of a witness, may have an action of trespass brought against him, or may be indicted for an assault, and if at the trial the question of privilege be raised, the court may overrule it in precisely the same manner as it has been overruled in the present instance. It is said that the judges in the case of Stockdale v. Hansard, although they decided against that particular part of your privileges which relates to the publication of papers, were nevertheless disposed to respect your other privileges. But do you know how long they will continue to respect them? Lord Denman, in this very case, cast a doubt upon your power of commitment, and has reserved to himself the right of inquiry whether that power, which may in some cases belong to you, ought always to be exercised. The majority of the other judges, it is true, differ from Lord Denman upon that point; but how do I know that in the course of a few years, a majority of them may not concur with him, and overrule your power of commitment, just as they have now overruled your power of printing? The right hon. and learned Gentleman (Sir E. Sugden) says, that in this particular instance, he thanks the right of publication did belong to the House. Then the judgment of the court must be wrong. I admit that the hon. Baronet, the Member for the University of Oxford (Sir R. Inglis), who thinks the judgment of the court right—who thinks that the House of Commons does not possess this power of publication—who thinks that the Court of Queen's Bench, and every other court in the kingdom, has a right to overrule our claim of privilege upon the point;—I admit that he may be justified in saying that we ought not to proceed further. The hon. Baronet, with his views upon the subject, is undoubtedly quite right in saying, that the further we go the worse we shall fare. But I appeal to those Members of the House who think that the judgment of the Court of Queen's Bench is wrong—who think that the power of publication is essentially necessary to the Commons of England—who think that this House ought to be the judge of its privileges—to them I appeal, and I apprehend that they must necessarily come to the conclusion, that the time has arrived when something must be done, and that there can be no mode of proceeding better calculated to achieve the object in view, and to preserve the rights of the House, than that now proposed by my noble Friend the Secretary for the Colonies. The motion is simply this—that Stockdale and the sheriffs be required to attend at the bar of the House. If the sheriffs be required to attend, it does not in the slightest degree follow that they are to be sent to Newgate. It is true that the commitment of the offending parties may be deemed necessary to a complete vindication of the privilege of the House. That is the course which has been adopted in former instances (of which, if the lime served, I could quote many), but all that is now moved is, that the sheriffs be required to attend. Under what circumstances do we require them to attend? Last year a resolution was passed by a large majority of this House, stating that Mr. Hansard ought not to appear to the action. In obedience to the instruction of the House he did not appear. Not having appeared to the action, his goods have been seized by the sheriffs of Middlesex to the amount of 690l. Then is it not right that we should have the sheriffs before us, in order that we may put a few questions to them—in order that we may know by what authority they have taken the goods of our servant—in order that we may ascertain whether our resolution was served upon them; in fine, in order that we may know how they mean to defend themselves. The sheriffs may justify themselves; but surely we have a prima facie case for calling them to the bar. When they are at the bar, questions may be put to them, and explanations may be made; but I should not be prepared to say, unless they acquit themselves, that it may not be necessary to proceed further against them; because, in spite of the notice which we caused to be sewed upon them, they have proceeded against our officer, and seized and sold his goods. Under these circumstances, I think it is highly probable that the House may determine that the sheriffs should be committed to Newgate; and at present, I confess, I know of no other course by whirl the privilege of the House can be vindicated. The hon. Baronet, the Member for the University of Oxford, says, "Why not seize the judges?" As far as this case is concerned, the judges are not at all to be found fault with; because, in this case, it has never been submitted judicially to the notice of the judges, that the action was brought against Hansard for that which he had done in obedience to the orders of the House. The judges, therefore, are not to blame; but the sheriffs, with full notice of our resolution, have proceeded to levy an execution upon the goods of our servant. Then what is to be done? I say, summon Mr. Stockdale, and those who have acted in the case, and let us hear what they have to say in their defence. If any hon. Member can point out any better mode by which our privileges can be asserted, by all means let that mode be preferred; but if no other mode can be suggested, then I say it is incumbent upon the House to adopt that which has been proposed by my noble Friend. If we do not take some steps of this kind, our privileges are for ever gone. I anticipate that a large majority of the House will be of opinion, not only that Stockdale, but that the sheriffs ought to be summoned. When they are at the bar, then will be the proper time to onsider of the ultimate course of action I think I may pledge myself to the House, that upon that occasion, I shall be prepared to show various instances in which a similar course has been pursued. I content myself now by reminding the House of the course pursued by the House of Lords in a very similar case—I mean the case of "Bell v. Glass," which occurred in 1827. In that case there was a judgment recovered, and the party who recovered the judgment was proceeding to levy an execution to obtain the fruits of the judgment; but the Lords immediately interfered, and summoned not only the plaintiff, but the judge who tried the case, to the bar of their House. The House probably knows the case to which I refer; but shall I be told that, in a question of this nature, there is any difference between the judges of the Queen's Bench, and the judges of the court of requests. The latter has just as much right to award damages, and issue execution as the Court of Queen's Bench sitting in Westminster-hall. Bell, the plaintiff, brought an action in the court of requests against Glass, an officer of the House of Lords, because Glass, in obedience to the orders of the House, took an umbrella from him. The Court of Requests heard the case, and awarded damages to Bell to the amount of the property of which he had been deprived. Thus far there is an identity between the case of Bell and Glass and the case of Stockdale and Hansard. What did the House of Lords do? They immediately summoned Bell, the plaintiff, to the bar of their House, together with the clerk of the Court of Requests, and, I think, one of the judges. They declared to these parties that it was a high breach of the privileges of their House to have brought the action, and they warned Bell that he should not persist in levying the damage. Furthermore, it was only upon the assurance of Bell that he would abandon the judgment given in his favour that he was not committed to Newgate. The officers of the Court of Requests declared that they were not aware that the matter had arisen out of a breach of the privileges of the House, and that Glass, the defendant, had acted in obedience to their Lordships' orders, and for that reason, and that reason alone, the officers of the court were acquitted. Here there is an instance unanimously come to by the other House under circumstances very similar to those in which we are now involved. The House of Lords have acted in the same manner in many other cases. An action was brought by a person against an officer of the House for acting in obedience to the orders of the House, in preventing the plaintiff from entering Westminster-hall during the time of the Hastings trial. The Lords immediately took notice of the matter, and it was only upon an assurance that the action should be abandoned that the plaintiff was not committed to Newgate. In another instance, a justice of the peace proceeded criminally against a messenger of the House of Lords, and indicted him at the Middlesex Sessions for what he had done in obedience to the orders of the House. The Lords again immediately interposed and threatened to commit him to Newgate, and would have done so if he had not abandoned the prosecution. The House of Lords had invariably acted in this firm manner in support of the privileges necessary for the due discharge of the functions which belong to them. Hitherto, too, this House has done the same. When the proper time arrives, I undertake to bring forward many precedents to show the rigorous manner in which this House has acted in cases where Ministerial officers have violated its privileges. Meanwhile. I am decidedly of opinion that we have no other course to pursue than to agree to the motion of my noble Friend. It is said that this may bring us into collission with the House of Lords. Undoubtedly it will. It cannot be avoided; but the conflict is not of our seeking. We have done every thing in our power to avoid it. With very great deference to the character of the Lord Chief Justice, for whom I have the highest, reverence, I must say that the conflict might have been avoided. We have done all in our power to prevent it; we have acted with forbearance and temper; we have done more, we have done what many hon. Members regret—we entered an appearance, and showed confidence in the judges, hoping that they would determine according to the principle of law, and to the precedents which had been set by those who previously presided in the courts of law. We have done our utmost to avoid the collission; but it now becomes inevitable. It must now be determined whether the House of Commons or the courts of law are to have the superiority. The House of Commons has now to determine whether all its privileges are to be at the beck of every judge, high or low, and of every court of common law, civil or criminal. One course that I apprehend may possibly be followed when the Sheriff comes to the bar, will be this: —The Sheriff still has the money in his hands—this court (for we are a court) may order him to retain the money, or to return it to Hansard. As the case now stands the Sheriff has to show cause against the rule, which I understand the Court of Queen's Bench has granted, why he should not pay the money over to Stockdale. Cause is to be shown on Saturday next. Now if the House should adopt the course to which I have referred the Sheriff will have it in his power to say to the court that the House of Commons, in vindication of its privileges, had ordered him to return the money to Mr. Hansard, because it was a violation of the privileges of the Commons of England that the execution should be levied. It may then be referred to the Court of Quern's Bench to say whether that is not a sufficient excuse. I apprehend that according to all precedent and all authority it must be held to be sufficient. Before such cause be shown I apprehend that, according to every authority and every rule of law, the rule now depending ought to be discharged. It may he said that the House of Commons in adopting the course now recommended to it is taking upon itself to overrule the Court of Queen's Bench. That is true. But, on the other hand, has not the Court of Queen's Bench been taking upon itself to overrule the House of Commons upon a matter of privilege? I admit that upon all general matters a resolution of the House cannot be held to be binding upon a court of law. But questions of privilege are distinct from all other mutters; and as regards them, I maintain that a resolution of the House is binding upon a court of law, because the House is the sole judge of its own privileges. The right hon. and learned Member for Ripon mentioned that in the Amesbury case the Lords came to a decision against the privilege of the House of Commons. But in that case, the Lords had no judicial notice of the resolution passed by the Commons. The motion before the Lords was simply a motion in arrest of judgment; all that appeared before their Lordships was the declaration. No resolution of the House of Commons was presented to the House of Lords. They had to look only to the record, and the sole question for their de- termination was simply whether the action was maintainable. The Lords never have determined, and I hope never will determine, that the privileges of the House of Commons ought not to be regarded and respected. My humble opinion is, that we are bound to pursue the course pursued by my noble Friend. We come now to no resolution further than that the Sheriff shall be summoned. Every thing else is open to discussion. No hon. Member by voting for the present motion pledges himself to go one jot further. It will be afterwards open for consideration whether the Sheriff shall be committed or discharged, or whether, as a middle course, he shall merely be ordered to retain the money, or return it to Hansard. At all events, whatever ulterior course the House may pursue, I trust it will adopt the motion now submitted to it by a large majority.
owned it appeared to him, that this proceeding was neither more nor less, than a first step towards an attack upon the judges. He thought, that no Member was entitled to vote for this motion, unless he was prepared for its necessary consequences—unless he was ready at some future opportunity to give his vole that the judges of the land should also be summoned to the bar of that House. Would the noble Lord the Secretary for the Colonies undertake to say, that such might not be one consequence of his motion, and that he himself might not be the person to move it? He would, therefore, entreat the House, before it ventured upon the first step, to reflect upon the final issue. He asked them whether the present feeling of the country was such as to render it politic or safe, to impair the reverence and authority due to the courts of law. When he looked to all the dangers with which they were surrounded, and to what he thought, the greatest of all, that the spell of prescription had been broken, and the habit of obedience lost amidst so many legislative changes, he should well nigh despair of the destinies of his country, if he could not rely on the unshaken firmness and incorruptible integrity of the judges of England. It was no ordinary matter to tamper with that authority. It was no light thing to tell the people of this country, that they, their representatives, were prepared to set the example of resisting and of defying the eminent men who are sworn to administer the law. Did hon. Members entertain any doubt—did the Attorney-general, above ail men, doubt that there were thousands and tens of thousands of misguided men who would readily follow that example? If the House was prepared to stand by the resolutions of May, 1837, and say that they were to be the sole authors of any privilege, or all the privileges they might think proper to claim—if they meant to say, that a majority, necessarily fluctuating and unsteady—a majority which was on one side of the House to-day, and perhaps might be on the other side to-morrow—was to crush and overbear the law of the land, he would ask what security could they give him against the very same principle being adopted by agitators out of doors to any doctrines which they might main-fain to be upheld by a majority of the people? The Attorney-general had been leased to say, that if they did not concur in the present motion, they would be almost guilty of treason. He scarcely thought, when he heard the hon. and learned Gentleman make that remark, that he could mean it seriously. It appeared to him, that the Attorney-general must for the moment have wandered from the scene before him back to Monmouth, in his imagination and recalled those painful events which, during the last few days, had so much engaged his attention. The Attorney-general, however, had also told the House, that if they rejected the present motion, they must be content with renouncing all their other privileges. He (Lord Mahon), had been surprised to hear the Attorney-general make use of that expression, for he could not doubt that the hon. and learned Gentleman had paid due attention to the sentence of the courts before which he pleaded. In giving the decision in the case of Stockdale and Hansard, there was an express disavowal on the part of the court of intending any attack on the other privileges of the House of Commons. Every one of the judges had carefully guarded himself against making the statement which the hon. and learned Gentleman had endeavoured to impute to them. Lord Denman said—
In the same way, Mr. Justice Littledale observed—"I do not know to whom the Attorney-general alluded, as disputing the existence of any parliamentary privilege. No such opinion has come under my notice. That Parliament enjoys privileges of the most important character, no person capable of the least reflection can doubt for a moment, Some are common to both Houses, some peculiar to each; all are essential to the discharge of their functions."
Could any thing be more explicit? In the same way, also Mr. Justice Patteson remarked—"There is no doubt about the right as exercised by the two Houses of Parliament, with regard to contempts or insults offered to the House, either within or without their walls; there is no doubt either as to the freedom of their Members from arrest, nor of their right to summon witnesses, to require the production of papers and records, and the right of printing documents for the use of the Members of the constitutional body, and as to any other thing which may appear to be necessary to carry on and conduct the great and important functions of their charge."
And yet, after the opinions of the judges had been so decisively pronounced on the justice of maintaining Parliamentary privilege in all cases where it was necessary as the safeguard of Parliamentary rights, the Attorney-general rose in his place in Parliament and said that the privileges of that House would be sacrificed if it succumbed to the judgment which those high authorities had delivered Like those authorities, he (Lord Mahon), most readily admitted the existence and value of many high privileges of that House—he admitted the value of that freedom of speech which the right hon. Gentleman in the Chair claimed in the name of the House at the commencement of every Session—he admitted the value of the personal impunity of every Member, the value of that privilege that denounced the obstruction of any Member in the discharge of his duty, and the use of threats or intimidation towards them. These privileges were just and necessary—were just because they were necessary. He admitted, too, most fully the right of publishing and circulating among all the Members of their body any documents, the printing of which they might conceive to be conducive to the public interest. But was there any resemblance between those privileges, those ancient and valuable privileges, and that privilege which had only been assumed within the last five years, and which it was now endeavoured to press on them as an ancient privilege—the privilege of publishing and distributing for money any publications which they might choose to put forth? He maintained that there was no similarity between these cases, and he must denounce the attempt which was made to exercise this unheard of privilege in the present instance. On this question he was at issue with several Gentlemen whose opinions he much valued; but there were two or three points on which he could hardly conceive that any difference of opinion could exist. First, it was hopeless to enter on such a course of proceeding; for hon. Gentlemen would observe that this was but the commencement, and that the present motion was objected to, not so much on account of itself, as of the consequences to which it would lead, unless they had the support of an enlightened public opinion. It was impossible for the House to plunge into a contest with the judges of the land, unless the force of public opinion was on their side. This was the first position he maintained; the second was that public opinion, so far as it had been expressed, was decidedly and unequivocally against the present claim of the House. Wherever this question of privilege had been discussed out of doors, their claim had almost universally-been mentioned in public meetings in terms of reprobation. The most influential portion of the press, both in London and the provinces, had raised its voice against it; the most distinguished men had spoken against it. In short, so far as the public had taken an interest in the subject, their opinion had been declared more decidedly against the claim of privilege than in the case of almost any public measure he could remember. If, then, the public support was essential to them in the present matter, and if it could not be denied, that the public were strongly adverse to them regarding this claim of privilege, as an unjustifiable aggression on the liberty of the subject, he asked the House if it were wise to persist, or if they would not do better to pause. He might refer on this point to the speech some time back pronounced by Mr. Sergeant Wilde, a speech which even a political opponent might be ashamed to allude to in any terms but those of respect.; That hon. and learned Gentleman had said, indeed, that the House ought to maintain its claim of privilege, but that it could only be maintained by unanimity within the House, and the support of; the majority without; and that if they had not that support, it would be better that the privilege should die a natural death, than that it should perish after a series of vain and ineffectual struggles, That Speech had been referred to by Gentlemen on the other side, and was acknowledged to concentrate all the arguments that could be adduced in favour of the Speaker's views. On that speech he (Lord Mahon) took his stand, and he would call on the House, in the words of Mr. Serjeant Wilde, to look well to the state of public feeling out of doors, and not to act in opposition to it. He would venture to say, if that House wished to stand, as he desired to see it stand, high in the estimation of the public, there was no subject on which they should touch more tenderly and warily than on that of privilege. On no subject ought they to be more cautious, for on none had greater abuses existed in former times. Were hon. Members who supported this motion, at all aware of the monstrous extent to which the doctrine of privilege had been carried in past times. There was not a more crying grievance in the history of this country than the extravagant extent to which in former times the privilege of that House were carried. They were exercised in such a manner from personal motives and for personal objects—as no Member in the present day could possibly approve of. If they referred to the journals they would find, that the cases were so numerous that, as Mr. Hallam had said, the only objection to giving a few was, lest it should be supposed, that they were exceptions to the rule, whereas on the contrary they were themselves, the rule and the common practice. From this great number he (Lord Mahon) would how ever venture to quote some. On the 20th of March, 1739, a complaint of Lord Galway was brought before the House, that several persons he named had entered his warren, and there killed a great number of rabbits in breach of the privileges of the House. Almost equally renowned was the case of Admiral Griffin's fish, March 16, 1759. On the 19th of January, 1740, the Earl of Barrymore, a Member of the House complained, "that in breach of the privileges of the House, certain persons had entered one of his farms and pulled down the fences." On the 2nd of April, 1733, Sir Robert Grosvenor complained of another breach of the privileges of the House, "that certain persons had dug several quantities of lead ore out of certain lead mines, part of the estate of Sir Robert Grosvenor." On March 6, 1723, Sir Samuel Lennard, a Member of the House, made complaint, "that an action at law for debt had been brought against one of the tenants of his estate by Edmund Goodwin; and on the 35th of April it was 'resolved, that Edmund Goodwin was guilty of a breach of privilege, and be ordered into the Serjeant's custody.'" On January 22, 1729, Lord Viscount Palmerston, a Member of the House, made complaint, that a citation out of Doctor's Commons had been served on Thomas Cox, one of his menial servants. This case was referred to the committee of privileges, but they reported on the 11th of February, that the parties had "made their submission, and given satisfaction to the right hon. Henry Viscount Palmerston." It might be said, that these were cases of private grievance, and only affected one or two parties; it might be so, but he might quote others which affected the whole public. He would, therefore, refer to an order of the House, which was made on several occasions, as for instance on the 13th of April, 1738, that it was a high indignity, and a notorious breach of the privilege of the House, for any news-writer, or editor, to give any account of the debates of that House; and that if any person should be guilty of that offence, the House would proceed with the utmost severity against the offender. Was there any one who heard him that would say, that this unrescinded order of the House was a right one, and that it ought to be enforced? If, then, these privileges were capable of being carried to such a monstrous extreme, and applied as in former times, to selfish and sordid objects of personal advantage, was he not right in saying, though he entirely acquitted every one in the present case from entertaining any such motives, that the privilege now contended for was equally capable of being exercised oppressively, and that it was absolutely necessary the House should consider well the feelings of the public, and proceed cautiously and tenderly on this very rotten ground? It was very true, if they looked to the century before the last, it would be found, that those privileges which were afterwards used for personal and private objects were of great advantage to the cause of public liberty, and served as a means of resistance to arbitrary power. But they afterwards became of less utility as a public opinion gradually grew up, and the principles of a free and constitutional government became understood and acknowledged. Those privileges were, in short, very useful as the scaffolding for the construction of the fabric of a free state; but the building being once completed, they served only to obstruct and to deform it. Under the Tudors and the Stuarts, it was undoubtedly necessary to arm the House of Commons with every possible power, he would almost say with powers just or unjust, to resist the arbitrary power exercised on the part of the Crown. In the reign of Elizabeth, they found, that the House of Commons was reproved by the Sovereign in terms such as a master would scarcely use to a menial. Even so great a man as Lord Bacon, when he represented the metropolitan county, was obliged to beg pardon for merely giving his opinion on affairs of state, and expressed in construction in words that might have suited a convicted felon at the Bar. Again, under James 1st, it was difficult to imagine the tyranny which was perpetrated towards the House. The Crown assumed the power of summoning any individual from his home, and his domestic affairs, and sending him on any office abroad, the Sovereign pleased. He did not know whether an appointment to office, in a distant colony would, at the present day, hold out equal terror amongst the Members of this House; but in the time of James 1st a destination to the colonies was regarded as a species of exile, and deterred many Members from the discharge of their duty. In periods like that, therefore, it was undoubtedly necessary to arm the House of Commons with privileges; and extraordinary as some of those privileges were, he was not prepared to say, that in their origin they were not required. Bat the circumstances of the times have changed. The objects for which privileges were in former days so jealously maintained no longer existed. The right of Supply and of annual meet- ing, arc now a sufficient safeguard against the Crown. Privileges were not now required to guard the Members of the House of Commons from encroachment on the part of the Crown; but they were sought to be maintained for the purpose of being used against those who sent them there. He contended, that no man, and no body of men, had any right to be armed with a power of setting themselves above the law. But would they not be I setting themselves above the law, if they assumed the privilege of publishing with impunity everything they pleased that came before them as evidence or as reports? In proportion as the privileges of Parliament had grown useless with regard to its constitutional object, a defence against the power of the Crown, for which it was at first devised, it was very remarkable, that in the same proportion had public opinion disapproved, and declared itself against it. The year 1679 was mentioned by Blackstone as the first in which the House bad proper securities against the power of the Crown, and in which the British Constitution had attained the highest point of excellence. It was remarkable, that in the very next year the doctrine of privilege was pushed so far by the Commons, that Burnet strongly complained of the aggression. Bishop Burnet said of the year 1680, speaking only of one branch of privilege:—"In many places those for whom they sent their Serjeant refused to come up. It was found that such practices were grounded on no law. While the House of Commons used that power gently, it was submitted to in respect to it. But now it grew to be so much extended, that many resolved not to submit to it." This related only to the practice "to bring up abhorrers as delinquents." In the progress of time, other testimonies were borne against the new fangled views of privilege by various writers and speakers. The very last composition that ever came from the pen of Swift, the "Legion Club," amidst a great deal of virulence and ribaldry, yet contained an energetic invective against the Irish Members of Parliament, as devoted to their own corporate interest—"Privileges, that is, immunities and safeguards, are necessary for the protection of the House of Commons in the exercise of its high functions. All the subjects of this realm have derived, are deriving, and I trust and believe will continue to derive, the greatest benefits from the exercise of those functions. All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise."
But on the present question only the last few days had brought to light a very remarkable authority in the publication of the last volumes of the Great Lord Chatham's papers. It appeared from them, that on the 9th of May, 1770, was held a meeting of the chiefs of the party then in opposition, and amongst the principal sentiments there expressed and embodied he found the following. It was there called "Mr. Cavendish's Creed." The words were; "I do from my soul detest and abjure, as unconstitutional and illegal, that abominable doctrine and position, that a resolution of the House of Commons can make, alter, suspend, and abrogate or annihilate the law of the land." Here, then, was the sentiment framed and supported in 1770 by such eminent statesmen as Mr. Burke, Mr. George Grenville, and Sir George Saville (all whose names were expressly mentioned), and applauded by Lord Chatham from his honoured retirement at Hayes. Encouraged, then, by the authority of these great men, he should take up his position upon the grounds on which they stood, and he would now say, that "he did from his soul detest and abjure, as unconstitutional and illegal, that abominable doctrine and position, that a resolution of the House of Commons could make, alter, suspend, abrogate, or annihilate the law of the land." With respect to the present privilege, namely, that of publication, it seemed to him, that a great deal of fallacy—he did not allude to what had passed on the present, but on a former evening—pervaded the speech of the noble Lord, the Member for Stroud. The noble Lord had talked a great deal about our ancient and venerable privileges. Now, the privilege which the House was at that moment particularly discussing was founded on a resolution passed so lately as the 30th of August, 1835, authorising the sale of all papers and reports published by that House—a resolution which ordered, that all such publications should be furnished, not only to all Members of that House, but also to all persons who should pay the stipulated price for them. That was the position of the House at that moment; and he cordially subscribed to the position of his right hon. and learned Friend, the Member for Ripon, which he had brought before the notice of the select committee, though he did not move it formally as a resolution—namely, that the foundation of all their present proceedings should be rescinded, meaning thereby the resolution of the House respecting the sale of printed papers. It was true, as his right hon. and learned Friend had stated, and as Lord Denman had afterwards explained in giving his judgment, that the sale was not necessary to make, and did not make, a publication. Nevertheless it could not be denied, that all their present practical inconvenience had arisen out of the resolution of sale. Could there be a better proof of it than this—that for many years before it was passed, the House had proceeded quietly and regularly, but that as soon as the sale was permitted the House was involved in all this serious entanglement and annoyance? He, therefore, agreed with his right hon. and learned Friend, the Member for Ripon, that the present inconvenience had arisen out of the resolution of sale. We must, therefore, do one of these two things; we must either rescind the resolution, or take some immediate and effective steps to prevent improper publications on the part of the House. He recollected well, that his noble Friend, the Member for Northumberland on a former occasion, had said, that care was already taken upon that point. His noble Friend, in proof of his assertion, had quoted what had occurred in the priming of the report of the committee on the state of the aborigines in New Zealand. [Lord Howick: "No, no !"] He begged pardon—the report of the committee on transportation. ["Hear!" from Lord Howick.] His noble Friend stated, that he belonged to that committee, and that, on reading over the minutes taken before it, he took care that several passages should be expunged, so that there was no ground of complaint from private individuals on account of injury done either to their feelings or to their characters. He thought, that the laudable example set by his noble Friend should be followed on every similar occasion. Was it not requisite, he would ask, that some such care should be taken? We publish in one Session what would take us at least five Sessions to read. We have cart-loads of blue rubbish wheeled into our rooms every year, which it is quite impossible for human endurance to wade through; and he now gave it as his deliberate opinion, that much of it might be dispensed with, as not at all required for the information of the House, But it had been said, that the House was bound in duty to its constituents to afford them full information upon all the steps upon which it came to any certain conclusions. It had been said, that hon. Members formed certain opinions—that they were responsible to their constituents for those opinions—and that it was most desirable, that upon all those opinions their constituents should have the fullest information. Now there was in point to this one case, to which he thought that the House had not hitherto paid sufficient attention, and that was the case of select committees. Select committees stood to that House exactly in the same relation in which that House stood to the country. Now, in the case of select committees, every publication which emanated from them previous to the presentation of their report was regularly headed by these words—"Roaring till their lungs be spent, Privilege of Parliament!"
Why might not the House apply to the publications which it sent forth to the country the same rule which the select committees applied to Members of that House? But then it was said, that this precaution was only temporary, as at the end of the examination the select committees gave the whole of the evidence to the House. If that were so, then let the noble Lord, the Member for Stroud, reconcile the practice, if he could, with the conduct pursued by his noble Friend, the Member for Northumberland, who had expunged from the evidence everything calculated to wound the feelings or injure the character of private individuals. If his noble Friend's conduct were correct, then might the House expunge from all its publications all passages having a similar tendency. On these grounds, then, he entertained great doubts whether the resolution of sale was for the advantage of the country. But this argument did not rest upon this point alone. If it were desirable, that they should protect their own publications, let them do so by Act of Parliament, by an act of legislation, in a fit and constitutional method, but not by inviting subordinate officers to break their sworn duty, or by punishing them for performing it. To any resolution that should have the effect of setting privilege above law he was prepared to offer his most determined opposition. To such a resolution he hoped, that the House would never become a party. The hon. and learned Attorney-general had said, that the resolution only went to the length of summoning Mr. Stockdale and the sheriff's to the bar, and that upon hearing what they had to allege the House might dismiss them. But there was another alternative—the House might punish them. This then was the first step in a course of which no man could foresee the end. This was the first act of hostility against the independence of the judges, an act which he never would believe that the House would sanction until he saw it with his own eyes. He confessed he did feel strongly on this question. He was desirous, that the House should stand high in the estimation of the country, and he did not think, that they had raised their character of late years by their use or abuse of their ancient privileges. If he were called upon to name the most prominent feeling of the age, not only here in England, but throughout Europe, he should say it was this—that no man, and no body of men should be allowed to set themselves above the law. And did they think, that they could possibly arrest this torrent of popular feeling? Let it not be said, that after all our past labours and struggles in the cause of constitutional freedom—after having won the Habeas Corpus—and the Bill of Rights—after tyranny had been expelled from the castles of the feudal barons, and the palace of the Stuart kings—that she had found her last refuge and shelter within the walls of a reformed House of Commons. It was with deep regret, that on this occasion he differed from several of his right hon. Friends, for whose authority he had the highest respect, but he felt bound by his duty to his constituents, and to that still higher tribunal, his own conscience, to resist the attempt of erecting the House of Commons into a new and a worse court of Star-chamber."Great inconvenience having arisen from the publication of minutes of evidence taken before committees, and of papers, &c, laid before them, it is particularly requested, that Members receiving such minutes and papers will be careful that they are confined to the object for which they are printed—the special use of the members of such committees."
wished to say a few words with a view to state on what ground it was he should oppose the motion of the noble Lord. If he understood the grounds upon which the noble Lord proceeded, they were these: that the judges had no jurisdiction, that they could not lawfully give a judgment in the cause, and that, therefore, there was no lawful ground for that which the sheriff's were doing. If this were so, then in his (Mr. Cresswell's) opinion, if any person ought to be called before the House, it ought to be the judges who pronounced the judgment upon which the sheriff was acting. The hon. Gentleman, the Attorney-general, was mistaken when he said that the judges had not had notice. The petition stated that they had notice; that application was made to them to prevent the return of the writ. The act of the jury was in execution of the writ of the judges, and therefore they had notice, they had proceeded after that notice, and they had adopted the proceedings of the other parties. The judges, then, were the real parties. The House would call before them the sheriff, but they shrunk from calling before them those who gave the authority to the sheriff. It was one of the worst positions in which the House could stand. Blame had been cast upon Mr. Justice Littledale, because he would not allow the justification to be pleaded; but they went to trial, they submitted the question to the consideration of the judges; and it was not till after an opinion had been given against them that they opposed the court. That was the way in which the House sought to elevate itself in public opinion. It was like consenting to an arbitration, and then, when the award was against them, turning round and objecting to the references. He regretted that the hon. and learned Attorney-general had brought so grave a charge against the admirable judge who presided over the Court of Queen's Bench; for if there was a fault any where, it was the fault of the Attorney-general that had involved the House. Lord Denman would have shrunk from his duty, if he had not given his opinion on the question involved in the cause brought before him. There were two questions in that cause. The first was, whether the publication were true or not, and that was found for the defendant; and the second was, under the general issue, whether it might be made the subject of an action. It would have been sufficient if they had proved that the publication was made upon a lawful occasion, for if there was no criminal intention there would be no libel; if it had been said that the publication was made on a lawful occasion, it would rebut the inference of malice, and therefore there was no libel. But this was not privilege, it was the law of the land. He would put the case of a merchant who was about to engage a confidential clerk. If any person believed that he was a swindler, he might write his opinion in a confidential manner to his friend; and although his representation were untrue, yet he would not be responsible, provided he made the communication fairly and honestly. Suppose, again, that a representation should be made to the Secretary of State that the person he was about to appoint to the magistracy had been guilty of tumultuous proceedings, had been guilty of sedition, or had libelled his neighbours—still that might be written to the Secretary of State, because it was for the public good. That was an occasion which would justify the publication, and it was no libel. But the Attorney general was not content with this. He said the House of Commons has authorised what has been done, and therefore it is legal. He defied the Attorney-general to prove that proposition. Lord Denman repudiated the doctrine. The House of Commons took offence upon that occasion, a discussion took place, and the resolutions were passed which he was happy he did not agree with. Another action was brought. An opportunity was given to Mr. Stockdale to become a martyr, and he was too good a judge not to avail himself of it. The House had passed a resolution, that any court which should entertain an action was guilty of a breach of its privileges: but the very House that passed that resolution made an order that the Attorney-general should plead for Mr. Hansard to that fresh action. What was the form of the plea? It was not to the jurisdiction of the court. They came in and defended what they had done, and put themselves upon the judgment of the court; they, in fact, told the court that it was not to decide against them. If the opinion of the court was against them, did the Attorney-general still say that it was to decide for them? Or, when that opinion was against them, was the court not to decide at all? The court did decide against them. The court heard the argument—it gave judgment against them. How could a contempt be more complete? Why did they not send for the judges? No—they paid the money. Mr. Stock-dale brought another action. They did not say then that they would oppose it, but they admitted on the record that Mr. Hansard had, without an excuse, pub- lished a libel upon Stockdale, They did not say any thing in answer to the action, and so they admitted the allegation to be true. (Lord John Russell: No.] The noble Lord said "no," but the noble Lord was not a judge of the land; and till he heard from one of the judges to the contrary, he must believe that where there was no plea on the record, the defendant admitted the charge to be true. Perhaps the Attorney-general would set the noble Lord right upon that point. When they had admitted this, there was nothing left but an inquiry into the extent of the injury which had been sustained by a libel which had been published without justification or excuse. The judges had their notice that the House of Commons had ordered them not to proceed further with the action. Was there a single instance in which the House of Commons had ordered a court not to proceed in an action? No. Was there a single instance in winch the House had successfully stopped an action? No. Would they be able to stop the present action? They might send to the sheriff, and tell him not to pay the money or they would send him to Newgate; they might send the sheriff to Newgate; but would they stop the action? The judges would tell him, if he did not pay the money they would send him to prison: so that he would be like the flying fish, equally unsafe in the air or the water. On these grounds he resisted the present motion. He believed that there was no instance of the House intercepting the progress of an action brought before a court of justice, except the instance quoted by the Attorney-general, where the House of Lords sent for the judge of the Court of Requests because an action was brought for an umbrella deposited in the House. They threatened to send the judge to Newgate, but plaintiff proceeded no further; for rather than go to Newgate he consented to forfeit his 7s. 6d. If the Attorney-general cited that case one way, he (Mr. Creswell) would cite the payment of the money to Mr. Stockdale the other. What were the precedents? That were a commitment was made by a court of competent jurisdiction, no other court had the power of inquiring into the validity of the commitment. The decisions did not make the power right, but it made the power binding. Mr. Justice Holroyd, in the case already referred to, had particularly stated that where a judge of oyer and terminer had, for a trespass, recorded a felony, the party had no remedy. That showed, that where there was a judgment of a court of competent jurisdiction, there could be no inquiry into the validity of that judgment. That was the reason why their committal could not be questioned, after it was made, though the judgment were erroneous; and if it were unreversed by error or appeal, it was binding. If, then, the House proceeded to committal, he agreed that there could be no interference, and there would be no responsibility, save such as they owed to the country for misdeeds. Why, however, should they commit? If they investigated the cases, they would find twenty in which the courts had entertained and decided the question of privilege. What did the Attorney-general say to the case of Burdett v. Abbott? Did not the court entertain the question in that case? Take again the case decided by Sir Orlando Bridgeman. The question was, whether a Member was privileged from suit as well as from arrest. The judges decided that the privilege extended to the person, and not to the suit. The judges, then, did entertain and decide a question of privilege. Again, he found in the argument of the Attorney-general himself, in the case of Stockdale v. Hansard, that the Parliament could not claim a new privilege. How could the judges ascertain what was a new privilege? Surely by means of inquiry. Where the question of privilege arose incidentally, they must entertain it and inquire into it. They had the power, and they had exercised it. The Attorney-general had not shown any good ground for this proceeding, and in his (Mr. Cresswell's) opinion it was too late now to interfere; but if they called any one before them they ought to call those who had issued the order, and not those who had been compelled to execute it.
said that it was important the House should clearly understand the position in which they stood with respect to this question, not that he meant thereby to bind their judgment, but because it was necessary that they should be aware of the course which they themselves had taken. In the year 1837, a committee was appointed by that House, composed of many of the most eminent legal authorities in it; that Committee united the hon. and learned Member for Edinburgh (the Attorney-General), Mr. Sergeant Wilde, his hon. and learned friend the Member for Huntingdon (the Attorney-General under the last Government), and his hon. friend the Solicitor-General under the same Government. That Committee, with one exception, came to the unanimous opinion that the House had the privilege, and that it was the sole judge of its own privilege. When that report was made by the Committee, the House of Commons confirmed it by resolution. A second action was then brought by Mr. Stockdale, and certainly to his regret an appearance was entered to the action. He thought that it would have been better for the House of Commons at once to have assumed the vindication of its own privileges, and not to have permitted them to be adjudicated upon by any Court of justice. He admitted, however, that it was a question of great difficulty, and he deferred to the Attorney-General, who thought it better to plead to the action, That step, he owned, he regretted at the time, and he even then predicted what would be the result. The question then arose, whether, having pleaded to the action, the House ought to prevent the execution of the judgment, and he had concurred in opinion with the noble Lord opposite (Lord J. Russell), that having submitted to the arbitration of the Court of Queen's Bench, there would be some inconsistency, and some injustice, when that Court had decided against them, in opposing the execution of the judgment. So great, however, was the eagerness then on the part of the House to vindicate their privileges, that there was great difficulty in inculcating forbearance upon that occasion. Notwithstanding the agreement of the chiefs of the opposite political parties in the House, the milder course was only carried by a narrow majority of twenty-two. The numbers were—188 to 166; so difficult was it, after hearing the speech of Mr. Sergeant Wilde, to persuade the House not to proceed to the immediate vindication of its privileges. In the course of the las session the damages were paid, he would not say with the consent, but without the opposition of the House. After all the discussion he was persuaded, and he had fully predicted, that there would arise a difficulty in the course which had been adopted. Their printer then received a notice from an attorney acting for a person named Polack, that notwithstanding the resolutions of the House, he was determined to bring an action against Messrs. Hansard, and it became necessary to determine what course the House would pursue. The noble Lord opposite thereupon proposed the following resolutions:—
These two resolutions were carried, with a full knowledge of all that had previously taken place, by a majority of 120 to four. After the termination of the session, Mr. Stockdale, being aware, as they were all aware, of the incompleteness of the powers of the House, brought another action against Messrs. Hansard—a third action, for the publication of the very libel which had been the subject of the preceding action.—Messrs. Hansard did not rely on what the House had done in the case of Polack, although the principle laid down in the case of Polack was precisely applicable to the case of Stockdale. Messrs. Hansard applied for advice to the highest authority in that House, they applied to the Speaker, and the Speaker, concluding that the House intended to abide by the principle which had been laid down in the case of Polack, and which was carried by the majority of 120 to four, naturally and justly advised Messrs. Hansard not to enter an appearance to the action. Messrs Hansard acted upon that advice, and Messrs. Hansard (their officers) had been subjected to the penalty of 600l. for acting under the authority of the Speaker intermediately; but, as it appeared to him (Sir R. Peel), really under the authority of the House. If the House bad received the same notice in the case of Stockdale as in the case of Polack, could there be a doubt that they would have affirmed the same principle? He begged them, therefore, to consider the position in which the House of Commons was placed. What was the course, then, that the House of Commons ought to take with regard to this action? And he only regretted that the legal difficulties opposed to the course proposed had not been stated months ago, before this action had arisen, and that they had been reserved for the moment when they were called upon to perform their duty. What; then was the course suggested? Should they abandon their privileges? If they; permitted the sheriff to pay Stockdale the damages which the jury had awarded, what would be the next step? They could not prevent Stockdale from instituting another action, if they once admitted, that one of their officers was liable in any court of law to an action, civil or criminal, for performing his duty to them. He apprehended that such would be the natural consequence, unless they took notice of the present proceeding. Had they any privileges? Were they the judges of those privileges? Those were the questions. Had they any privileges? His noble Friend (Viscount Mahon) said, that in times gone by their privileges had been abused. That might be, but that was not the question here. Had they any privileges, and if they had, who were the judges of them? His noble Friend admitted one certain privilege, the privilege of publishing for the use of the Members of the House; that was a great concession for his noble Friend to make. Who, then, were to be the judges of the exercise of that very privilege? He took the concession that they possessed the privilege; who were to judge of its exercise? He presumed that his noble Friend would admit, that if the privilege was to be available to the House, the House must judge of its exercise He assumed, that this was the only privilege they possessed. Of what avail would it be, unless the House were exclusive judges of the proper use? Suppose the Queen's Bench should say, that they had improperly exercised this privilege which his noble Friend admitted they possessed, what course would the House take? Suppose they should proceed by resolution to declare that the House had the privilege, and that they themselves were the exclusive judges of their privileges. These resolutions would be condemned as impious and heretical, and some one might declare, that he did absolutely abhor, detest, and abjure the impious doctrine that a resolution of the House of Commons can contravene the law of the land. That disclaimer was equally applicable to the resolution enforcing "the privilege which his noble Friend admitted they did pos- sess, as to the resolution on the privilege of publication. There were no means of enforcing any privilege except by resolution. If the Queen's Bench should disregard their resolution by giving damages against them, how were they to proceed except by committing the sheriff or other ministerial officer? His noble Friend said, that they had added the power of sale to their old privilege. He was ready to admit, that the use of the power of sale had raised some prejudice against them in the public mind. He thought, that it was difficult to persuade the public, that there was not a material distinction between the two kinds of publication. It might be a question of policy whether they should adhere to the sale, but it could be a question of policy only, and did not enter into the present discussion. Observe, the Queen's Bench had determined that, as far as legal considerations were involved, the question of sale did not arise. It might be said by his noble Friend, that it was desirable to revert to the state of things which formerly existed—to revert to the same state as they were in seven or eight years ago. If they did this tomorrow, how would it affect them with respect to the case of Stockdale? He presumed, that the Court of Queen's Bench lived in a higher atmosphere—that it was above being affected by any prejudice which might exist in the public mind—and that it would determine the question as one of principle; and was it not clear that the court would enter upon its consideration, not as to whether they thought the House had acted unwisely, but as lawyers—so that if they gave up the sale, it would not be admitted that the Queen's Bench had no right to question their privilege. And what was the present publication? It consisted of inquiries into the state of gaols. It was proposed to introduce some new regulation to cure the abuses existing in prisons. As an instance of these abuses, it was staled that the prisoners were in possession of publications which, pretending to be scientific, were calculated to injure the minds of the prisoners. If this were true, was it not a material fact. His noble Friend, said, that they might make a publication of the fact for their own use. Had his noble Friend considered the difficulty of confining it to their own use; had he considered the difficulty of not communicating it to their constituents? If a Member in possession of such papers should in any manner communicate their contents to any other person, the question would immediately arise; if the Court of Queen's Bench should determine, that the Member had been a little too free in the use of his papers, even by communicating them to a constituent, the very question which they had now to consider would then arise. Therefore, his noble Friend's doctrine that the House might publish the papers for their own use, unless he would also admit, that the House were to be exclusive judges of the exercise of their own privileges, would be of no avail. If he admitted the question of a conflicting jurisdiction, the present question would arise. Therefore, if they felt that they had inadvertently committed themselves by their proceedings, if they felt that upon the whole it would be the wisest course to recede, however painful it might be, they ought to withdraw from a justification of their own proceedings. But he (Sir R. Peel) firmly believed, that this privilege of publication was essential to the House in order to enable it to perform its duties. He did not conceive, that they could act as a House of Commons unless they had the power of publishing, not only for their own use, but for the information of the public, what they considered necessary. He had discussed the subject in the belief that to the House of Commons the power of publication was necessary. For instance, they had the power of addressing the Crown for the removal of a judge. They might be called upon to decide a question which the House of Commons had been called upon in former times to decide, the succession to the Crown. How could they address the Crown for a removal of a judge for misconduct, without first satisfying the public mind that their decision upon such conduct was correct? Could it be possible for the House of Commons to set aside the chums of a Duke of York, without convincing the public mind that danger existed if he should ascend the Throne? There were, therefore, many questions of legislation on which it was essential that the public mind should be informed, as well as the Members of that House, and he must maintain, that the power of publication was necessary for them as a House of Commons. Then it had been distinctly admitted by the judges that whatever functions were necessary for the House of Commons in the performance of its duty the House of Commons did possess. He believed, that the privilege of publication was necessary to enable the House of Commons to discharge its duties, and as at present advised, he was ready to take the step which the noble Lord opposite proposed. At the same time he was quite aware of the imperfection of the power which they possessed. He was aware that their power was perfect only whilst Parliament was sitting. Here was an instance of the imperfection. Mr. Stockdale waited till after the Parliament was up, and then instituted the present action. The natural presumption had hitherto been, that the courts of law would assist the House under such circumstances; but a case had unfortunately arisen in which the House was deprived of that assistance. When they were deprived of the assistance of the courts, they were forcibly reminded of the imperfection of the powers of the House. His hon. and learned Friend, the Member for Liverpool (Mr. Cresswell), had asked why they did not commit the judges. There were professional and technical matters with which he was unacquainted, but it might be improper to commit the judge, and the proper course was to commit the ministerial officer. They should strive, as far as they could, to prevent the recovery of these damages, and he thought, also, that the analogy which had been drawn with respect to the courts of law was in some respects supported by the view which he had taken upon the subject. He would ask the House to suppose a case. Let them suppose that the Court of Queen's Bench should persevere in issuing a process in opposition to an injunction of the Court of Chancery. This would be a case of conflicting jurisdictions which the law could not foresee, and what would be the course to be pursued by the Court of Chancery? Would they commit the judges of the Court of Queen's Bench? He thought that they would not, but that they would direct their offensive proceedings against the officer of that court. He was always ready to admit, that the efficacy of proceedings of the kind now necessary to be taken consisted in unanimity, or rather in the prevailing and general determination of the House to enforce its privileges. With regard to the measures which must be taken to rescue Parliament from its present position, he was not prepared to give any opinion on that point. That something must be done he fully believed, and he was convinced, that there must be some arrangement made with respect to the insufficiency of their powers in reference to the courts of law, because it was perfectly evident, that during the recess, when the House was not sitting, those powers were incomplete. He would not give any opinion as to the course which was proper to be pursued, but he would point out, that the sheriff had expected that they would endeavour to maintain their own privileges, and had given them an opportunity of interfering —that he had believed, that they possessed strong feelings on this point, and that they would, therefore, interpose their authority in reference to the subject. They were bound then to assist that officer as far as they could; and admitting, as he did, that their powers were incomplete, he yet hoped that they would exercise them to the fullest extent, and he should most sincerely regret any interruption which might have the effect of thwarting them in the object which they had in view. Whatever might be the result of this case, however, he must express his firm belief, that the privilege of free publication was essential to the performance of their duties as a deliberative assembly, and as one of the branches of the constitution of this country."1. That Messrs. Hansard, in printing and publishing a report and minutes of evidence on the present state of the Islands of New Zealand, communicated by the House of Lords to this House on the 7th of August, 1838, acted under the orders of this House: and that to bring or assist in bringing any action against them for such publication, would be a breach of the privileges of this House: and 2. That Messrs. Hansard be directed not to answer the letter of Charles Shaw, mentioned in their petition, and not to take any step towards defending the action with which they are threatened in the said letter."
would not have risen to address the House upon this occasion but for some observations which had fallen from the hon. and learned Attorney-general, in answer to which he felt called upon to say a few words. The hon. and learned Gentleman had asked whether, if they submitted themselves to the Court of Queen's Bench on this occasion—if they recognised the jurisdiction and the power of that court to entertain the question of their privileges, they must not, in like manner, admit the same jurisdiction and the same power to exist in every court, of whatever character or rant, which could entertain an action of libel? He was prepared to admit that proposition as correct, but he contended that, a defendant having once recognised the authority of any court, by answering to an action commenced in it, could not object to the cause being decided, and that it was the bounden and imperative duty of the judge who presided in the court to pronounce judgment in favour of the plaintiff, provided the circumstances which appeared before him showed that he was entitled to such a termination of the suit in his favour. Suppose a defendant in an action for a malicious libel, set up, as a defence, that it was not malicious, and that it was not the subject of an action, for that it was privileged and protected by an order of the House of Commons; he would ask whether, in such a case, it would not be the duty of the judge to conduct the cause to a conclusion in the ordinary course? It was impossible to suppose that he could refuse to entertain the suit, and, having once entertained it, he was bound to give some decision upon it, more especially when the right of the court, over which he presided, to interfere was admitted by the defendant. That was a proposition which could not he contravened, and the evil which existed in cases of this description could only be removed by a binding enactment of the Legislature. The right hon. Baronet, the Member for Tamworth, had said, that this House had hitherto naturally looked to the courts of law to defend the privileges which its Members enjoyed. He agreed that it was the duty of those courts to protect and defend the exercise of the privileges of that House, but he would take the liberty of asking how they could defend and protect those privileges, unless they had the means afforded them of ascertaining what they were? When he said this, however, he did not mean to admit, that the courts in Westminster-hall had ever forsaken the duty which they owed to Parliament, but, on the contrary, he must say, that they had invariably exerted themselves in the maintenance of those rights, and that it was to them, rather than to the House itself, that the Mouse should attribute the continued existence of many of the privileges, to the support of which they were entitled. Referring to the privilege of freedom from arrest, they would see that the first cases which arose upon this subject came before the courts of law at periods when they could not be entertained by the House; and he would ask whether those courts had ever been backward in refusing to afford that protection to which hon. Members were undoubtedly entitled? They had not; and it was to the exercise of their power that the House was mainly indebted, not only for the maintenance of their privileges, but also for the high estimation in which those privileges were held by the country. Questions had been proposed in the course of the debate as to the course which was intended to be pursued; but whatever mode of dealing with the case might be adopted, he hoped that the Messrs. Hansard, having acted under the orders of the House, would be fully protected and indemnified. When the proper time came, he should propose an amendment to any resolution which might be laid before the House to that effect, and he should further venture to suggest, for the future government of any person who might be engaged in the perilous office of obeying the commands of the House, that in any case which might hereafter arise, the course which had been always hitherto pursued might be adopted, and that the hon. and learned Attorney-general might be instructed to defend the action, and afterwards report upon the subject to the House. That had been done in all previous cases, and in Burdett v. Abbott, where not the printer or the publisher was sued, but where the distinguished individual who held the office of Speaker of that House was made defendant in an action, he appeared by the Attorney-general and defended it, under the direction and by the authority of that House. Instead of sending for the sheriff, and committing him, Mr. Abbott put himself on the law of his country, and by the law he was delivered from the charge made against him. And he begged to remind the House that that, case was carried by a writ of error to the House of Lords. The House of Commons appeared there by the Attorney-general, and having put itself on its privileges it was determined, as the Court of Queen's Bench had already determined, that, the conduct of their Speaker was justified. In conclusion he begged to inquire whether the hon. and learned Attorney-general, in saying that the Court of Queen's Bench had come to a wrong conclusion, so expressed himself with sincerity? If he were really sincere, then he said, let him bring a writ of error in order that, the question might be fairly decided. He hoped, as the time was not passed when this might be done, that a writ of error would yet be brought, and that the privileges of that House might be sustained, as they bad hitherto been, by the legal and constitutional tribunals of the country.
had hoped that the motion which he had made would have been assented to by the House, reserving the general discussion of this subject to the time when the parties should appear at the bar. The debate that evening had been of a very general character, but there were one or two observations which had been made which he could not omit to notice. The noble Lord (Lord Mahon) had spoken of this question as if it were a subject agitated only five years ago for the first time, on which it was now intended to found some new proceeding; and had said that they were going against the opinions expressed by the judges of the courts of law. Now, he considered both these assertions to be entirely erroneous First, with regard to the privilege of printing and publishing the papers connected with the proceedings of that House; before the revolution of 1688, the votes of the House were printed and published by the authority of the Speaker, with the evident intention of appealing to the people as to the conduct of the House of Commons; and the very first act after that, was the printing and publishing the Declaration of Rights, in which the House of Commons of that day appealed to the people for their support in that extraordinary crisis. The House of Commons subsequently continued to print their votes and papers, and, for a considerable time during the last century, about 240l. a-year were regularly received by the Speaker in respect of the profit arising from their sale. The House had an undoubted right to alter the practice in this regard; and the matter of printing their papers was entirely in their discretion; but in making any alteration they had never said, and there was no assertion that the right of sale had been disputed, and that the House had abandoned the right because it was disputed, or that that right was declared not to exist by any court of law. In reference to the decisions which had been given by the judges of the courts of justice, the argument of the hon. and learned Attorney-general distinctly showed that the suggestion thrown out was unfounded. With regard to this subject, he should read one or two sentences from the judgment given in the case by Lord Denman, when it was argued in the Court of Queen's Bench. That judgment, in many respects, conveyed a censure upon the decisions of former judges, upon this very question of privilege, and he contended that this showed two things; first, that the unanimous decisions of judges in courts of justice were not always to be depended upon; and, secondly, that he was certainly not liable to the imputation which the hon. Member for Oxford had brought against him, of speaking with unusual disrespect of the judges. In allusion to the well known case of Brass Crosby, Lord Mayor of London, Lord Denman said,—
In allusion to the judgment of Sir William Blackstone, Lord Denman said,—"The Lord Mayor had manifestly committed a breach of privilege: the grounds of it are fully set out in the Speaker's warrant. Nothing could, therefore, be less needful or less judicial than the wide assertion of privilege that was volunteered by the Chief Justice. Yet, after all that he said respecting the indefinite powers of Parliament, his decision rests on the simple ground that all courts have power to commit for contempt."
In allusion to two other cases he said,—"It must be confessed that his remarks on the state of public feeling rather evince the spirit of a political partisan, than the calmness and independence which become the judicial seat."
Let not the hon. Member for Oxford, therefore, tell him, that he was the only person who spoke irreverently of the opinion of the judges. He had never said anything equal to this. Lord Denman then went on to quote Lord Kenyon's opinion, which he said,—"I do believe, that if the court had deliberated and paused, they would have employed more cautious language, and abstained from laying down premises so much wider than their conclusion required. Lord Ellinborough, when pressed with their authority, distinctly refused to bow to it, corrected some phrases ascribed to several judges in the reports of both cases, and placed a limitation on the doctrines laid down by Chief Justice de Grey, without which it would have yielded to either House of Parliament the same arbitrary power over men's liberty, that the doctrine of ship-money would have lodged in the Crown over their property."
Lord Denman then proceeded to remark further on the judgment to which he was alluding, and expressing his entire dissent from the opinion expressed in favour of the privileges of the House of Commons—he concluded by saying, in reference to a subject immediately before-mentioned,—"Was extra-judicial, and is open to investigation. The proposition asserted by him was, that no proceeding of either House of Parliament could be a libel. But with the highest reverence for that most learned judge, I must be allowed to observe, that he here confounds the nature of the composition with the occasion of publishing it."
He had the authority of Lord Denman for saying, then, that the opinion of a learned judge might be given sometimes "in the spirit of a political partisan," and sometimes bearing "marks of haste and of excitement," and that the opinions themselves were very often "extra judicial;" and worst of all, that the opinion given in the case decided by Chief Justice De Grey "would have yielded to Parliament the same arbitrary power over men's liberty, that the doctrine of ship-money would have lodged in the Crown over their property." Then, if the judges made these extraordinary mistakes, he must say, that he doubted the propriety of leaving all these questions of privilege to the decision of men who might be influenced by such feelings as he had alluded to. But there were other matters of very grave importance involved in this question. He had endeavoured to show, that the practice of Parliament, the determination of the House of Commons, since the glorious period of the Revolution, and the opinions expressed by the learned judges in conformity with that practice and that determination, had acknowledged the right of publication; but, then, there was a further question of whether they could give way in this matter of privilege; and, if not, in what manner they could assert their right? With respect to the first point he must say, that he thought, that if they were at once to abandon it, and to assent to the doctrine that their privileges were hereafter to be judged of by the courts of law, they must not lull themselves into the belief that the judges would in future cases extend the limited view of privilege which had been recently declared, because much of the ground of the judgment in the cases which they were then considering, would go to other cases and would deeply affect other privileges It was said, "No doubt you have the power of publication, but you should not exceed it;" but that was the way in which the very privilege which they had of freedom of speech in Parliament was contravened, and denied by the judges of King Charles's time. They did not say, that hon. Members must not speak in Parliament, and must not carry on their proceedings there; but they made the limitation, that a man could not be made to answer out of Parliament, for what occurred in Parliament. It was stated by the Chief Justice, and it was an argument which had great weight, and great popular force, that no doubt the House of Commons might order any one, if it pleased, to print anything which they might choose, but that no one was to be injured by any libellous and calumniating matter which might be so printed. There were often criminating statements made in debate in that House. An inquiry took place in a former House with regard to the Duke of York; but what if the judges had said that it was quite competent for the House to state the matters which then came out relating to any person whom they might wish to accuse, but that if they admitted strangers into the gallery, and permitted slanders to be spoken in their presence, the courts of law had jurisdiction, and must restrain them in the exercise of the right which they possessed? He did not see why, if the courts of law could interfere with the privilege of publication, they could not also interfere with that of freedom of speech, and those other privileges which had been alluded to. With regard to the manner of asserting their privilege, without entering into the question of what might be done hereafter, he thought that they should first assent to the measures which had been already adopted. The opinions which had been given in that House during the present debate, served the more to confirm him as regarded this course. A right hon. Gentleman early in the evening had contended, that no person had the least right to any damages under circumstances such as those which were now in question, but when damages were awarded, whether the amount was 100l. in the first instance, 600l. in the next, 1,000l. in the next, and so on to any amount which a jury might think proper to award; then, he contended (and in this, the hon. and learned Gentleman who spoke last coincided with him), this House ought to reimburse the party for any loss occasioned by such damages having been awarded. In like manner, the hon. and learned Gentleman had contended the Messrs. Hansard ought to be reimbursed by this House the amount lost by them in consequence of such damages having been given by the jury. Why, what would be the consequence of such a course being adopted? Continually increasing damages awarded by juries, and votes of such amounts by that House, not in the case of the Messrs. Hansard merely, but in the case of every individual against whom anything of a libellous or criminating tendency might be published in the course of their proceedings, although such publication might have taken place for the best reasons in the world —in fact, every man against whom any libellous matter might be published, however deserving of punishment, would, if such a principle were adopted, acquire a claim on the public treasury. A species of annuity, of thousands a-year, would be created and added to the expenses of the House of Commons. Another suggestion was, to propose a conference on the subject with the House of Lords. But what was the usual course of the House of Lords under similar circumstances? Without entering at large into cases, he would refer only to one besides that stated by his hon. and learned Friend. This would sufficiently show what course the House of Lords had been accustomed to adopt. In 1768, when an action for false imprisonment had been brought against a justice of the peace who had, by order of the House of Lords, committed a person, the House of Lords at once committed to Newgate the attorney who had commenced the action, and the plaintiff to the custody of the Black Rod. Here the House of Lords did not stop to answer in any way the action commenced in the court of law, but at once committed the parties. The case in question was, as compared with the present, a trifling one; but it sufficiently showed that where a breach of their privileges had been committed, the House of Lords were not slow to make the offending parties suffer. If, then, pursuant to the advice which had been given, they asked a conference with the Lords on the question of their privileges in regard to the present case, what must be the answer of the House of Lords? That they were quite able to maintain their own privileges, and that they, therefore, would leave it to the House of Commons to consider if they also had not the means of vindicating their privileges. Surely, then, until it was proved that the House of Commons had no power to vindicate their own privileges, it was not for them to apply to the House of Lords on the subject. A power similar to that asserted by the House of Commons was exercised by the Chancery Court. That court would not allow officers who had acted under its authority to be proceeded against in any other court. The Court of Exchequer exercised a similar power. He had read that morning an elaborate judgment of Chief Baron Eyre on the subject. That court would not allow persons charged with offences against the revenue to be sued in any other court; nor would they allow their officers to be sued in any other court by persons considering themselves aggrieved. If such was the course pursued by the House of Lords, the Court of Chancery, the Court of Exchequer, and if such had been, as he maintained it had, the regular course of the House of Commons, surely it was best to proceed according to the ancient custom and power of the House before employing any new expedient. He felt, in common with the right hon. Gentleman opposite, that they were placed in a situation of great difficulty, being no longer assisted by the courts of law. He was aware, in fact, that obstacles might arise, not from the want of power on their part, but from the great extent of their powers. They had powers which, if exercised to their utmost extent, were no doubt amply sufficient to justify and carry into effect their orders; but not without inflicting personal suffering on individuals, and incurring great public inconvenience. He had been taunted by the hon. Baronet the Member for the University of Oxford, and by the noble Lord, for not having at once called the judges to the bar of that House, and there impugned their conduct on the judgment seat. Under the resolution of 1837, he contended, it was quite competent to the House to use that power, but undoubtedly great public inconvenience must arise from it. To attack the inferior officers was said to be pusillanimous; but Lord Chief Justice Denman, in his judgment, said, that he did not think the Speaker could be brought into the Court of Queen's Bench and punished for anything done by order of the House of Commons. He was of opinion that the Speaker might order the publication of matter that would be libellous on individuals, and that might inflict great personal injury; yet the Court of Queen's Bench, could not, in his opinion, take any notice of his proceedings. So that the very fault the hon. Baronet found with their proceedings was to be found with the opinion of Lord Denman; because, while he was of opinion that the person printing libellous matter might be proceeded against in that court; yet, against the Speaker, or the House itself, by whose order such libellous matter might have been so printed, they could not proceed. He confessed that he thought that this opinion of the Lord Chief Justice would be difficult to defend in a court of law; but at the same time, he must say, that if, by stopping the inferior officers of the law, these proceedings could be brought to a close, it would be preferable to adopting the extreme course recommended by the hon. Baronet and the noble Lord. He had not intended to say so much, but he could not leave un-asserted privileges so important on an occasion when there was danger of their being denied and totally abrogated."This inconsistency in a person of Lord Kenyon's wonderful acuteness, as well as other inaccuracies, make one regret that the judgment was not more deliberately prepared. It was given on the instant, not in a full court, not after hearing both sides. It bears marks of haste, and, we cannot deny, of the excitement and inflammation which belonged to the extraordinary times in which it occurred."
The House then divided. Ayes 286; Noes 167: Majority 119.
On the resolution, that the Sheriffs be called to the bar,
hoped the noble Lord would consent to an amendment, to the effect that the sheriffs and under sheriffs be ordered to bring with them all writs, rules, and other authorities, under which they might have acted.
thought the amendment of the hon. and learned Gentleman quite unnecessary. The writs to which he referred formed the justification of the sheriffs, and he apprehended, that they would bring them of their own accord as a part of their defence. The object of producing the warrant was to show that the officer had acted under the authority of the sheriff.
contended, that the argument of the learned Attorney-General against ordering the sheriffs to produce their writs held equally good against ordering the inferior officer to produce his warrant. He hoped that the House would be consistent in their course on this occasion, and that if they required the inferior officer to produce his warrant, they would at the same time be prepared to face the real grounds of the conduct of the sheriffs in the performance of their public duty. He trusted that they did not already begin to flinch from the consequences of their pro- ceedings. A short time ago they were afraid of the judges, and now they seemed to be afraid of the writs in the possession of the sheriffs. He trusted the noble Lord would either abandon so much of his motion as related to the production of the warrant by the inferior officer, or that he would consent to an amendment, ordering the sheriffs to produce that legal authority which they were bound to obey.
moved an amendment to the effect before stated by him.
agreed with his hon. and learned Friend in thinking that the amendment was unnecessary, as the sheriffs would bring the writs as their justification; but he would not object to such an amendment.
The House divided:—Ayes 206; Noes 117: Majority 89.
List of the AYES.
|Abercromby, hon. G.||Cayley, E. S.|
|Adam, Admiral||Chapman, Sir M. L. C.|
|Adare, Viscount||Chetwynd, Major|
|Aglionby, H. A.||Chichester, J. P. B.|
|Ainsworth, P.||Childers, J. W.|
|Anson, Sir G.||Clay, W.|
|Archbold, R.||Clements, Viscount|
|Bailey, J.||Clerk, Sir G.|
|Baines, E.||Clive, E. B.|
|Baker, E.||Clive, hon. R. H.|
|Baring, rt. hon. F. T.||Collier, J.|
|Barnard, E. G.||Collins, W.|
|Barrington, Lord||Colquhoun, J. C.|
|Barry, G. S.||Conyngham, Lord A.|
|Beamish, F. B.||Coote, Sir C. H.|
|Bellew, R. M.||Courtenay, P.|
|Bernal, R.||Craig, W. G.|
|Bewes, T.||Crawley, S.|
|Blackburne, I.||Crompton, Sir S.|
|Blackett, C.||Curry, Mr. Sergeant|
|Blair, J.||Dalmeny, Lord|
|Blake, M. J.||Donkin, Sir R. S.|
|Blake, W. J.||Douglas, Sir C. E.|
|Blakemore, R.||Duke, Sir J.|
|Blennerhasset, A.||Dundas, C. W. D.|
|Blewitt, R. J.||Dundas, F.|
|Bodkin, J. J.||Dundas, hon. J. C.|
|Boiling, W.||Dundas, Sir R.|
|Brabazon, Lord||Du Pre, G.|
|Bramston, T. W.||Easthope, J.|
|Bridgernan, H.||Eastnor, Viscount|
|Briscoe, J. I.||Edwards, Sir J.|
|Brocklehurst, J.||Ellis, J.|
|Brodie, W. B.||Ellis, W.|
|Brotherton, J.||Erle, W.|
|Buller, E.||Etwall, R.|
|Bulwer, Sir L.||Euston, Earl of|
|Busfeild, W.||Evans, G.|
|Byng, G.||Evans, W.|
|Campbell, Sir J.||Ewart, W.|
|Cavendish, hon. G. H.||Farnham, E. B.|
|Farrand, R.||Mackenzie, W. F.|
|Fielden, J.||Macnamara, Major|
|Ferguson, Sir R. A.||Maidstone, Viscount|
|Finch, F.||Manners, Lord C. S.|
|Fitzpatrick, J. W.||Marshall, W.|
|Fitzsimon, N.||Marsland, T.|
|Fleetwood, Sir P. H.||Maule, hon. F.|
|Fleming, J.||Melgund, Viscount|
|Follett, Sir W.||Mildmay, P. St. John|
|Fort, J.||Milnes, R. M.|
|Fremantle, Sir T.||Monypenny, T. G.|
|Gisborne, T.||Mordaunt, Sir J.|
|Gordon, R.||Morpeth, Viscount|
|Gore, O. J. R.||Morris, D.|
|Goulburn, rt. hon. H.||Murray, A.|
|Graham, Sir J.||Muskett, G. A.|
|Grattan, J.||Nagle, Sir R.|
|Grattan, H.||Noel, hon. W. M.|
|Greene, T.||O'Brien, C.|
|Greg, R. H.||O'Brien, W. S.|
|Greig, D.||O'Callaghan, hon. C.|
|Grey, Sir C.||O'Connell, D.|
|Grey, rt. hn. Sir G.||O'Connell, J.|
|Guest, Sir J.||O'Connell, M. J.|
|Hale, R. B.||O'Conor, Don|
|Handley, H.||O'Ferrall, R. M.|
|Harcourt, G. G.||Ord, W.|
|Hardinge, Sir H.||Paget, F.|
|Harland, W. C.||Palmer, C. F.|
|Hawes, B.||Palmerston, Lord|
|Hawkes, T.||Parker, M.|
|Hawkins, J. H.||Parker, R.|
|Heathcoat, J.||Parnell, Sir H.|
|Heathcote, G. J.||Pattison, J.|
|Hector, C. J.||Pease, J.|
|Hepburn, Sir T. B.||Pechell, Captain|
|Hill, Lord A. M. C.||Peel, rt. hon. Sir R.|
|Hindley, C.||Pendarves, E. W. W.|
|Hobhouse, Sir J.||Philips, Sir R.|
|Hobhouse, T. B.||Philips, M.|
|Hodges, T. L.||Philips, G. R.|
|Hope, hon. C.||Phillpotts, J.|
|Hoskins, K.||Pigot, D.|
|Houldsworth, T.||Planta, rt. hon. J.|
|Howard, F. J.||Ponsonby, hon. J.|
|Howard, P. H.||Power, J.|
|Howick, Vicount||Price, Sir R.|
|Hughes, W. B.||Protheroe, E.|
|Hume, J.||Pry me, G.|
|Humphery, J.||Rae, rt. hon. Sir W.|
|Hutton, R.||Redington, T. N.|
|James, W.||Rice, E. R.|
|Jenkins, Sir R.||Rich, H.|
|Jermyn, Earl||Rickford, W.|
|Jervis, J.||Roche, E. B.|
|Jervis, S.||Roche, W.|
|Labouchere, H.||Roche, Sir D.|
|Langdale, hon. C.||Rundle, J.|
|Lascelles, hon. W. S.||Rushbrooke, Colonel|
|Leader, J. T.||Russell, Lord J.|
|Leveson, Lord||Russell, Lord C.|
|Lister, E. C.||Rutherfurd, rt. hn. A.|
|Loch, J.||Salway, Colonel|
|Lockhart, A. M.||Sandon, Viscount|
|Long, W.||Sanford, E. A.|
|Lushington, S.||Scholefield, J.|
|Lynch, A. H.||Scrope, G. P.|
|Seymour, Lord||Vigors, N. A.|
|Smith, J. A.||Villiers. hon. C. P.|
|Smith, B.||Vivian, Major C.|
|Smith, R. V.||Vivian, J. H.|
|Somerset, Lord G.||Vivian, Sir R. H.|
|Somerville, Sir W. M.||Waddington, H. S.|
|Speirs, A.||Wakley, T.|
|Stanley, Lord||Walker, R.|
|Stansfield, W. R. C.||Wall, C. B.|
|Staunton, Sir G. T.||Warburton, H.|
|Stewart, J.||Ward, H. G.|
|Stuart, Lord J.||White, A.|
|Stuart, W. V.||Wilbraham, G.|
|Stock, Dr.||Williams, W.|
|Strickland, Sir G.||Wilmot, Sir J. E.|
|Strutt, E.||Winnington, Sir T. E.|
|Sutton, hon. M.||Winnington, H. J.|
|Talbot, J, H.||Wodehouse, E.|
|Teignmouth, Lord||Wood, C.|
|Thornely, T.||Wood, G. W.|
|Thornhill, G.||Wyse, T.|
|Townley, R. G.||Yates, J. A.|
|Troubridge, Sir E. T.||Young, J.|
|Verner, Colonel||Stanley, E. J.|
|Verney, Sir H.||Divett, E.|
List of the NOES.
|Acland, Sir T. D.||Egerton, W. T.|
|Acland, T. D.||Egerton, Sir P.|
|A'Court, Captain||Eliot, Lord|
|Alsager, Captain||Feilden, W.|
|Archdall, M.||Fellowes, E.|
|Attwood, W.||Filmer, Sir E.|
|Bailey, J. jun.||Fitzroy, hon. H.|
|Baillie, Colonel||Gladstone, W. E.|
|Baring, hon. F.||Glynne, Sir S. R.|
|Baring, H. B.||Godson, R.|
|Baring, hon. W. B.||Goring, H. D.|
|Bateson, Sir R.||Grimsditch, T.|
|Bell, M.||Grimston, Viscount|
|Bentinck, Lord G.||Grimston, hon. E. H.|
|Blackstone, W. S.||Halford, H.|
|Blandford, Marquess||Hamilton, Lord C.|
|Broadley, H.||Harcourt, G. S.|
|Bruce, Lord E.||Heathcote, Sir W.|
|Bruges, W. H. L.||Heneage, G. W.|
|Buck, L. W.||Henniker, Lord|
|Buller, Sir J. Y.||Herbert, hon. S.|
|Burroughes, H. N.||Hodgson, F.|
|Chapman, A.||Hogg, J. W.|
|Christopher, R. A.||Holmes, hon. W.|
|Copeland, Mr. Ald.||Hope, G. W.|
|Cresswell, C.||Hotham, Lord|
|Cripps, J.||Ingestre, Viscount|
|Dalryrople, Sir A.||Ingham, R.|
|Darby, G.||Inglis, Sir R. H.|
|Dick, Q.||Irton, S.|
|D'Israeli, B.||Jackson, Mr. Sergeant|
|Dottin, A. R.||James, Sir W. C.|
|Duffield, T.||Jones, J.|
|Dugdale, W. S.||Kemble, H.|
|Duncombe, hon. W.||Knatchbull, Sir E.|
|Duncombe, hon. A.||Knightley, Sir C.|
|East, J. B.||Law, hon. C.|
|Eaton, R. J.||Lefroy, rt, hon. T.|
|Litton, E.||Round, C. G.|
|Lowther, hon. Col.||Round, J.|
|Lowther, J. H.||Rushout, G.|
|Maclean, D.||St. Paul, H.|
|Mahon, Viscount||Shirley, E. J.|
|Marton, G.||Smith, A.|
|Maxwell, hon. S. R.||Smyth, Sir G. H.|
|Neeld, J.||Sotheron, T. E.|
|Neeld, J.||Stormont, Viscount|
|Nicholl, J.||Sturt, H. C.|
|Packe, C. W.||Sugden, rt. hn. Sir E.|
|Pakington, J. S.||Thompson, Mr. Ald.|
|Palmer, R.||Tyrrell, Sir J.T.|
|Palmer, G.||Vere, Sir C. B.|
|Pemberton, T.||Vivian, J. E.|
|Perceval, Colonel||Walsh, Sir J.|
|Perceval, hon. G. J.||Williams, R.|
|Plumptre, J. P.||Wood, Colonel T.|
|Praed, W. T.||Wood, Colonel|
|Richards, R.||Kelly, F.|
|Rose, rt. hon. Sir G.||Freshfield, J. W.|
Motion, as amended, agreed to.
The Queen's Speech—The Address
stated, that the House had been to the House of Peers, where her Majesty had been pleased to deliver a Speech from her Throne, a copy of which he had procured, which he would read to the House.
The Speech having accordingly been read,
addressed the House as follows: In rising to move an address in answer to her Majesty's gracious Speech from the throne, I cannot but be convinced of my own incapacity for the adequate performance of the task which I have undertaken; but I trust that the House will, on this occasion, extend to me its indulgence. It will be my duty to call the attention of the House to the various important topics touched upon by her Majesty in the course of her Speech from her Throne; but, in doing so, I shall trespass as short a time as possible on the attention of the House, and in the observations that I shall make, I trust that no words will fall from me that will, in the slightest degree, tend to disturb that spirit of harmony and unanimity which it is so desirable should prevail on the present occasion. Indeed, I believe I am only stating, though most imperfectly, what must be passing within the mind of every hon. Member, when I declare my conviction that this House will, as of one accord, hail with the most lively joy and satisfaction the auspicious announcement which has been made to us this day, and that they will hasten, with that loyally and attachment which have ever characterised the people, whose representatives we are, to offer their sincere congratulations to her Majesty on this event, in language dictated by no forced or hollow feelings, but the free and spontaneous tribute of our hearts. God be praised, that in these days, and in this country, we do not need to sacrifice the happiness of our Queen to any ambitious views, or interested calculations of policy, but that, in the free unfettered exercise of her judgment, she has made such a choice as will, she thinks, under the Divine blessing, conduce to the happiness of her people and secure her own happiness. The Prince, the object of her choice, is indeed one of whose excellent qualities there seems to be but one opinion. Descended from an illustrious line of ancestors, kind and affable in his manners, winning in his demeanour, to many accomplishments adding the graceful embellishments of literary pursuits, loved and honoured in the bosom of his family, and endeared to the people among whom he has lived; he is one to whom I think, without using the language of panegyric, the country may look with the fondest expectation, as one likely to contribute to their interests, and to secure the happiness of her, who, amidst the manifold cares which sit so heavily on so young a brow, has chosen him to be the sharer of her joys and sorrows; and I am confident the House will, in its liberality and attachment to the Queen, make such fit and reasonable provision as will enable this prince to maintain the honour and dignity of the station he will have to fill. I turn with peculiar pride and satisfaction to the result of the arduous campaign in India—a campaign which, whether we view it on its important political beatings, or as one of the most brilliant and gallantly conducted military achievements on record, is one on which we may well congratulate her Majesty. If we view it in its important political bearing, as opening to us the course of the Indus, and securing our frontier on the side of Persia, we must admire the prudence and foresight of Lord Auckland in placing on the throne of Afghanistan a prince friendly to the British interests, instead of leaving it a prey to intestine divisions, and a cradle for intrigues against the British power. If we view it as a military achievement, we must all, I am sure, be proud of the valour and hardihood of the brave troops, and of the consummate skill of their gallant commander, which have brought the campaign to such a happy issue; whether we consider the distance traversed, the natural difficulties of the country overcome, or the rare and skilful combinations which must have existed to move three distinct bodies of troops over a distance of nearly 1,500 miles, or the courage and decision with which they crowned their enterprise by the assault and capture of Ghuznee; and these are the results of a campaign concerning which even those most conversant with Indian affairs predicted defeat, failure, and disgrace; and if I recollect aright there was no one more confident in his predictions of failure than the Duke of Wellington; but even he underrated that spirit of valour and patient endurance with which he, more than any man living, has infused the British army; and when he predicted failure he forgot that there was the recollection of his own gallant deeds in that quarter of the globe, to stimulate and excite the troops to achievements which should rival even his unparalleled exploits. I am sure that the House will concur with her Majesty in regretting that a disposition to violence should have shown itself in any part of this country, and that in one district hitherto remarkable for its tranquillity, a most serious outbreak should have taken place; but I think it is matter of congratulation for the House that wherever this disposition to violence has shown itself, it has instantly been, and successfully, repressed by the energy of the magistrates, the good conduct of the respectable part of the community, and the steadiness of the troops, and that this House will assure her Majesty that they join with her in relying upon the power of the law, and the good feeling of her Majesty's subjects to suppress those treasonable practices. Any person unacquainted with the state of the country might be led to suppose that these outbreaks originated with the severe depression of trade; but whatever may have been the proximate causes, I believe that the real one are to be traced to deeper, and I fear more dangerous sources. It is I think to the alarming state of moral and religious darkness in which these vast multitudes have grown up that this spirit of disaffection is to be traced; it is to the absence of all fixed principle, which makes them the dupe of every interested demagogue, and the ready listener to every advocate of wild and visionary schemes for bettering themselves; and I would seek the remedy, not in fresh penal legislative enactments, but in doing all that lies in our power to secure to every man the blessing of a sound religious education—an education which shall teach them better things, and which by showing them, and proving to them, that they are human beings, not to be used as mere machines, but felt and cared for by those placed above them by wealth and station, as men like themselves, and as beings having eternal interests at stake, an education which, in doing this, shall gradually wean them from the spirit of insubordination, and lead them to seek their own advancement and happiness as a class, in the happiness and advancement of the whole nation; and my prayer to God is, that if clouds are darkening the horizon, they may, through his providence be dispelled, and that, at this important juncture he will so order our deliberations, that in the faithful and zealous discharge of our duty we may apply our minds, unbiassed by private or partial affection, to the consideration of the momentous questions before us, and that, differing where we do differ, fairly and openly, we may lay aside the bitterness and rancour of party spirit, and devote ourselves to the real good of the country, so that the nation may have no cause to complain that we have betrayed the trust reposed in us by them; and that when the records of these days shall come to be traced, posterity may find it written in imperishable characters, in the spread of civilization and in the improved moral condition of the people, that from the days of Victoria and Albert commenced an era when the peace of love and order again influence the habit and character of the whole nation, and when, in the blessing of an united and unselfish people, her Majesty found the best security for her throne, and the brightest flower in the nuptial wreath. The hon. Member concluded with proposing an address, which was as usual, an echo of the speech.
said, in rising to second the address which we have just heard read, in answer to her Majesty's most gracious Speech from the Throne, I shall, as far as possible, endeavour to follow the example that has been set me by the hon. Member who has preceded me, and abstain from any topic of an irritating nature, or which might have the effect of disturbing that Unanimity which I hope will exist on the present occasion, and which I feel it is so necessary should exist. I do not think it necessary to press at any length upon the House the consideration of the various topics of her Majesty's Speech, more particularly as I see in that Speech, embracing as it does the foreign, colonial, and domestic policy of the country, much cause for joy and congratulation, little for apprehension, and none, I hope, for serious alarm. I shall not allude to the foreign affairs of the country farther than to say, that we must all rejoice at the cessation of the civil war in Spain, and although rebellion may still lurk in a corner of that country, there is every reason to believe, that it will be speedily put down, and that Spain, when taking her station amongst the constitutional monarchies of Europe, will soon reassume that position to which the bravery and commercial enterprise of her inhabitants so justly entitle her. Her Majesty's allusion to the affairs of our colonies, leads us to hope that the affairs of Canada are likely soon to be settled, whilst the brilliant results of our Indian expedition, must cause us all to rejoice at the glories and achievements of the British arms. Her Majesty next alludes to the domestic affairs of this empire; and she recommends to the attention of Parliament the speedy settlement of the Irish corporations. This, Sir, is not the first time that a similar recommendation has proceeded from the Throne, but I fondly hope it will be the last. The corporations of Ireland are in a condition more peculiarly to create distrust, animosity, and ill will amongst the people of that country. The Roman Catholics are by law admissible to corporate privileges, but they are debarred a participation in those privileges by the corporate officers themselves. Had the law never interfered—had the Catholics been debarred from the enjoyment of these privileges by law, it would not have been so bad as it now is; and I need not state to the House how calculated this state of things is to increase animosity and ill-will; and I do trust it will be put an end to. It has been too much the habit, when the affairs of Ireland are being discussed, to consider, not how much we can give, but how little—not how to give generously and willingly, but how to give grudgingly and sparingly. I trust that this will no longer he the case, but that this question will be finally and satisfactorily set at rest. I am sure this House must feel grateful to her Majesty, for the promptitude with which she has carried into effect the intentions of Parliament with regard to Post-office reform: and I trust that this measure will prove of advantage to the public, and tend to the promotion of knowledge. I am sure this House must respond to her Majesty's sentiments of sorrow and regret, when she alludes to the commercial embarrassments of the country. I trust and hope these difficulties will be but temporary, and that the commercial prosperity of this kingdom will soon again be placed upon a sure and permanent basis. Deeply, too, must this House participate in the regret expressed by her Majesty, that disturbances should have taken place in some parts of this country; and whilst alluding to this topic I hope, without breaking the promise I made at the commencement of my address not to introduce any irritating topics, that I may congratulate this House and the country upon the tranquillity at present existing in Ireland. I know there are some who deny the existence of this tranquillity. I can only say to such, that the evidence of their senses differs from that which mine presents to me. Others there are, who, while they admit and rejoice in the existence of this tranquillity, still doubt its permanency, and believe that it is only skin deep—
Such is not my opinion. My own opinion is, that this tranquillity is consequent upon the introduction of a fair, a just, and equitable system of government, which has conciliated the goodwill and affections of the people, and whilst I fervently pray that this tranquillity may be lasting, I as fervently hope that the outbreaks which have disturbed this country may be but temporary, and speedily give place to a better state of things. Sir, it must have been a source of sincere satisfaction to the ministry upon a late occasion, when a part of this country was disturbed, to have been able to withdraw troops from Ireland—thanks to the facility of communication with perfect ease, and thanks to the introduction of a wise system of government into the country with perfect safety. The first topic, Sir, introduced by her Majesty into her Speech, alluded to the interesting announcement of her intended marriage. The hon. mover of the Address has left me little to say upon this point; nevertheless, as a loyal subject of my Sovereign, I trust I may be allowed briefly to allude to it; and I feel convinced, that the illustrious birth, and the many shining qualities which adorn the Prince, the object of her Majesty's choice, will recommend this union less to the approbation of the people of England, than the knowledge of the fact, that it was determined on, less from motives of state policy, than as her Majesty's own unbiassed and spontaneous choice. The Crown of these realms, Sir, can receive no additional lustre from any alliance, however splendid. No alliance can give additional security to the Sovereign of these kingdoms—she reigns secure in the hearts, the loyalty, and affections of her people; and most fervently, I trust, will this House respond to the aspirations of her Majesty, that her approaching union may promote the happiness of her people, and that she may enjoy in her domestic circle, when wearied with the storms of state, some alleviation to those cares and anxieties to which she has been destined by Almighty Providence at so early an age, and which are inseparable from her exalted station—a station which, exalted as it is, her present Majesty both dignifies and adorns. I think it unnecessary to say any more upon the present occasion, and shall conclude by seconding the Address. The Address was then read by the Speaker."They hear a voice in every wind, And snatch a fearful joy."
did not wish to disturb the unanimity which the House must be disposed to exhibit on such an occasion, but he did not wish that the House should be held to adopt every word of the Address unguarded by any declaration of disapproval as to part of its contents. Under these circumstances, he felt it to be his duty, and he hoped he felt it to be a painful duty, to offer a few words to the House on the present occasion. He could have wished that her Majesty were surrounded by Ministers who would have felt it to be their duty most respectfully to have hinted to her Majesty the propriety of delivering this speech by royal commissioners. He must next proceed to state, that there was a remarkable omission in the Speech, and, as it now appeared, not an unintentional one. It was not by accident or inadvertence that the nation was not assured in the first declaration from the Throne of that which was most important for the security of the highest of all its interests at the earliest opportunity, and through the most authentic communication. He knew that it had been said that the precedent of the last royal announcement of a similar nature was scrupulously followed. It was not necessary for him to state in plainer language what that omission was. It must be alike alive to the imagination and understanding of all the persons of different religious persuasions by whom he was surrounded. When George 3rd announced the nuptials which he had contracted, a very different state of thing existed in this country, and his advisers did not think it necessary to make specific mention of the religion of the Princess with whom he had contracted marriage. But what was the conduct of the House of Commons even on that occasion? Was the Address a vague echo of the Speech from the Throne? No; when his Majesty had announced to both Houses that he had contracted nuptials with a princess eminently endowed with every virtue, the House, not content with general congratulation on so happy and auspicious an union, added in the description of it, the mention of the princess being descended from an "ancient and illustrious Protestant family." It was essential, not merely to the interest of the nation—not merely to that religion approved by the hearts and judgment of the great mass of the people, but to the security of the Throne itself, that the Sovereign when contracting marriage, should contract it with a Protestant. And though he thought there was no reason to doubt the fact, still it would have been better advised on the part of her Majesty's Ministers to have introduced into the Speech from the Throne the most explicit declaration on a point so vital. Having called the attention of the House to the most important omission, he wished to notice some other parts of the Speech. He unhappily heard very imperfectly the Mover of the Address but he regretted that the hon. Member should make one declaration as to the close of the contest in Spain, without the least reference to the mode in which that contest was brought to what he called a pacific termination, He would not enter into the question as to who had the right to the Spanish throne, but he had trusted that he should never hear an English gentleman congratulate an assembly on the progress of a cause, the success of which was owing to the most monstrous treachery. He protested, also, against being bound by an approval of the policy pursued with regard to China. They had not the papers, and, therefore, could not, legitimately, enter into a full disussion of the question. But everybody knew that we had endeavoured to introduce into China an article which the Chinese government had always prohibited. Now he asked the most zealous advocate of the corn-laws, whether, if Russia persisted in sending her coin into this country, in violation of our municipal laws, England would not have been justified in carrying on a war for its exclusion? In that case, the importation would have been of the most beneficial production of the earth; but we had persisted in forcing upon the Chinese pestilential poison, in opposition alike to the laws of God and man. There were many other subjects, such as the Irish corporation question and the ecclesiastical commission, which he felt disposed to dispute, but he felt it a duty to himself and his constituents to express his unqualified disapprobation of the points to which he had referred, lest his silence should be construed into an approval of them.
thought, that nothing was more clearly understood in Parliament than that an address of the present description did not pledge the opinion of any Member to the several points of general policy touched on in the Speech. He should have, therefore, concluded that a Member of so great experience as the hon. Baronet, ought not to have thought it necessary to guard himself against the expression of any opinion approving of the general policy of the Government. Nor should he have thought it necessary to rise, but that like the hon. Baronet, he was anxious that by his silence he should not be supposed to acquiesce in the inferences and conclusions drawn from some points adverted to in the Speech. Now, in the first place, as to the omission of the statement of the religion of the Prince to whom her Majesty was about to be united in marriage, he thought the House would at once see that it was wholly unnecessary for her Ma- jesty to declare to the House the fact, which, according to the law of the land, could not be different. It was wholly unnecessary for her Majesty to state that Prince Albert was a Protestant; because, not only was the fact notorious to all the world, but the marriage could not have been contracted if he were of a different religion. With regard to the termination of the war in the Basque provinces, the hon. Gentleman thought that no English gentleman could feel or express satisfaction at the termination of a civil war by such means as those by which he conceived the contest had been brought to a conclusion. Now, he stood there in his public or private capacity, ready to express unfeigned satisfaction at that event. He thought the termination of a civil war by the arrangement entered into was satisfactory, as by it subjects in rebellion against their sovereign returned to their lawful allegiance. And, on the other hand, the sovereign secured to them the continuance of privileges to which they attached great and well-merited value. Such a conclusion of the war was alike honourable to both parties and must be viewed by all friends of peace and order with sincere and unmixed satisfaction. They had heard in that House on former accasions great interest expressed for the suffering Basques, and the greatest anxiety that they should retain the enjoyment of their Fueros. The peace made between the Queen of Spain and the Basques rested on the preservation of their Fueros, and he certainly did not expect to hear from that side of the House expressions of dissatisfaction at an arrangement which led to such results. Gentlemen might call it treachery, if treachery consisted in a return to allegiance. That was not his view of treason. He did not expect that Gentlemen holding the opinions which those on the other side entertained should attach that opprobious epithet to the return of subjects to their allegiance. Now, with regard to the other point, he was sure that the House and the hon. Baronet would see, that it was unfitting for him on this occasion to enter into any detail or explanation on this subject, but this, at least, he felt bound to say, that her Majesty's Government, in advising her Majesty to state what was contained in this Speech with regard to the transactions in Asia, had no intention to dispute the right of every Government to prohibit the importation of any foreign commodities which their Government might choose or think it right to prohibit, or of enforcing that prohibition by means and authority of its own.
agreed with the hon. Baronet that the Ministers would have better discharged their duty by inserting the word "Protestant."
Sir, I feel that there is a general indisposition on the part of Members of this House to choose the present occasion for commenting on general affairs; and I heartily join in the general desire that we should be enabled not only to concur in the Address which has been moved by the hon. Member opposite without amendment, but that we should also be able to do so without the introduction of those topics which might lead to acrimonious discussion. Sir, I fully participate in what I collect to be the general feeling of this House. Of late years the policy of Governments has been to avoid the introduction in the Speech of any topics compelling political opponents to propose amendments. The policy of opposition has also been of late years to discourage amendments. Sir, I should not, under ordinary circumstances, feel myself at all bound by that custom; but I do feel that the present are not ordinary circumstances. I feel that on an occasion in which the Speech from the Throne announces the approaching nuptials of the Sovereign I should not be justified in making any deviation from the usual practice; and I should, therefore, he extremely unwilling to disturb the unanimity of the House by proposing any amendment. I am bound also to say that the nature of the speeches we have heard delivered by the Mover and Seconder of the Address does, as far as possible, take away all necessity for amendment, and diminishes very much the temptation, which the excited state of public feeling affords to bring on a full discussion. At the same time I entirely agree with my hon. Friend that by now permitting the address to pass without amendment we are not only not concluded on the subjects introduced into the Speech from the Throne, but that we reserve to ourselves a full right to inquire into the conduct of the Queen's Government. I shall reserve to myself full power to express an opinion on the state of public affairs and the political acts of her Majesty's Ministers. Sir, I must now be allowed to say for myself, and for those with whom I have the honour to act, that we cordially participate in the congratulations which the Address offers. I do entirely enter into the aspirations for the happiness of her Majesty in her approaching nuptials. Her Majesty has been enabled to contract those nuptials under circumstances peculiarly auspicious. It frequently happens that political considerations interfere with such transactions, and that persons in exalted stations are obliged to sacrifice their private feelings to their sense of public duty. Her Majesty, however, has the singular good fortune to be able to gratify her private feelings while she performs her public duty, and to obtain the best guarantee for happiness by contracting an alliance founded on affection. I cordially hope that the union now contemplated will contribute to her Majesty's happiness, and enable her to furnish to her people an exalted example of connubial felicity. Sir, notwithstanding my wish to avoid discussion, I cannot help expressing my surprise at the omission of one topic in the Speech. Recollecting the protracted discussions of last Session on the affairs of Jamaica, and the result to which they led, I am surprised at the omission in the Speech from the Throne of any allusion to the affairs of that colony. There appears to be every reason to congratulate ourselves on the effect of the two measures then adopted by Parliament; and I presume that Ministers, although those measures passed without their concurrence, must participate in the general satisfaction at their results. It appears that by pursuing the course which I ventured to recommend you have been able to preserve the constitution of Jamaica, and at the same time to cause the subsidence of all intemperate feeling. I told you that if you ventured to trust the Assembly you would find them not unworthy of your confidence—not unwilling to perform their legislative duties. Of course I have no information on this subject except what I derive from the public papers; but, judging from them, I think that Ministers have ample reason to congratulate themselves that their opinions were overruled. One word only with respect to the late military operations in Caboul. It is impossible to withhold our admiration at the successful efforts of our brave troops. I cannot pay them a higher compliment than to say that they appear to have supported the ancient glory of their country. There cannot be a dissentient voice on this subject, and I trust that Government will give an early opportunity for an expression of gratitude by this House. A motion for that purpose would, I am sure, meet with universal approbation, and 1 must express my surprise that no notice of moving a vote of thanks has been given. But, Sir, I must not be considered to imply perfect approbation of the political measure because I give unlimited praise to the military operation. The hon. Member who moved the Address seemed to labour under the impression that the Duke of Wellington had predicted the military failure of this enterprise. The hon. Gentleman is mistaken. If I recollect aright, the Duke of Wellington, knowing the skill of the commander, predicted that the military operations would succceed, but at the same time expressed his conviction that our difficulties would begin after our military operations had been completed. His grace contended that the engagements we contracted would be very onerous, and from this he predicted a want of success, and not from any doubt of the valour of our soldiers. For my own part I must confess that my apprehensions for the consequences have not been allayed by the temporary success of our troops. Sir, there now remains but one more subject to which I feel it absolutely necessary to allude, less for the purpose of provoking discussion than for seeking explanation. The point to which I allude has reference to the slave trade as carried on by Portugal. I think it necessary for the credit of the country to seek from the Noble Lord opposite some explanation on this subject. The House will recollect that in the course of last session measures of an extraordinary character—justified, I believe, by the necessity—were called for by Government to compel Portugal to fulfil her treaties, and in case of refusal to take their fulfilment into our own hands. The House of Commons, after some discussion with the other House of Parliament, passed at length a Bill giving effect to the proposal of Government. A correspondence was then laid on the table of the House explanatory of our relations with Portugal on this matter; and one of the vindications of the measures which the Noble Lord opposite was compelled to resort to was that Portugal had absolutely refused to make the slave trade an act of piracy. In that correspondence I find that the representative of this country at the Court of Lisbon was instructed to require from the Minister of Portugal his signature to a treaty making slave trading a piracy. It would also appear that by a paper in the des- patch-office, signed by Lord Howard de Walden, and dated May the 28th, the total abolition of the slave trade was made a condition sine qua non with the Portuguese Government. That despatch distinctly led to the inference that the signature by the Portuguese Government making a continuance of the slave trade piracy was exacted as a condition sine qua non. But there has recently been published by the Portuguese Government a correspondence which I wish the Noble Lord opposite to reconcile with the correspondence laid before this House. In it there appears a letter from Lord Howard de Walden, marked, "most private and confidential." It is addressed,
Now, Sir, the question is, whether that letter formed part of the transaction on which was founded the application of Government. Here we have a public despatch making the designation of piracy a sine qua non, and a private note consenting that it should not be styled piracy. This is to me a mystery requiring some explanation. I make no comment on the matter at present; all I mean to do is to give the Noble Lord an opportunity of stating whether the letter is genuine, and, if genuine, an opportunity of reconciling it with his public despatch. With these exceptions I shall adhere to what I perceive to be the general feeling of the House, and abstain from topics which might increase the asperity of debate, briefly reserving to myself, at this time of general alarm and excitement, a power of inquiring how far the conduct of Government has contributed to this alarm."My Dear Viscount—Here is a note on which to hang your declaration as to piracy. You will briefly first state your objection to the demand as unwarrantable: secondly, propose a penal law inflicting secondary punishment on slave traders; thirdly, remark that no European Power, except England, has declared the trade piracy; and, fourthly, declare the readiness of Portugal to act in concert with the other Powers, although unwilling to take the initiative. This strikes me as the best case you can make out, wording your conclusion strongly against the slave trade."
felt no hesitation in giving the explanation which was required. In the first place, the negociations with Portugal for the purpose of obtaining an adequate treaty, were continued during more than four years, and were divided into several stages. The private note to which the right hon. Baronet referred was written at an earlier stage of the negociations than the failure on which the measure of last year had been proposed. About a year and a half ago the public and private notes had been written. He had sent a draft of a treaty to be proposed to the government of Portugal, in which it was required that the slave-trade should be declared an act of piracy. The Portuguese minister stated it was impossible to comply—the Portuguese government refused to make the slave-trade piracy, alleging the state of public feeling in that country, and the difficulty of obtaining legislative sanction to such a measure. The result was that the British Government felt that they could not obtain that concession, and that it must be abandoned. At that time Lord Howard de Walden had received leave of absence; (he was now stating the outline of the transaction,) and Lord Howard de Walden said, that he would agree to certain conditions to which the Portuguese minister attached importance, but to which he was not authorized by his instructions to consent. The Portuguese minister said, "If you will agree to these, I will agree to the other parts you propose, and a treaty can then be signed between us." The conditions which he insisted upon were that Great Britain should guarantee the Portuguese colonies. Lord Howard de Walden said, "I will take upon myself to do this," upon certain terms well understood by persons conversant with these matters; "but if you will agree to all the other points we require, I will sign a treaty which shall contain the conditions you insist upon. I am going home, and will submit it to my Government. If they agree, well and good, if they do not, here is a memorandum to be drawn up between us, to the effect that the whole thing shall be as if it never had existed, and our signatures shall be of no avail." One point upon which Portugal took her stand was, that she would not agree to make the slave-trade piracy. The note read by the right hon. Gentleman, was a note suggesting to Portugal the least objectionable mode of making that communication to us. Lord Howard de Walden in that note, did what every body engaged in negotiations of this kind does—namely, in friendly terms he suggested to the Portuguese minister the least objectionable manner of stating his refusal, and he mentioned the arrangement which in his opinion would come nearest to the point we desired to attain on the subject of piracy. "State," said he, "and place upon record that you have awarded the severest secondary punishment to it —state that you will declare the slave-trade to be piratical, and that you will agree to declare it decidedly piracy whenever the other powers of Europe shall do the same thing." This conduct was far from being inconsistent with the professions in Parliament of the Government, or with Lord Howard de Walden's instructions; but, on the contrary it was calculated to bring Portugal, as far as they would go, towards the object which we had in view. The end, however, of the negotiation was a failure; for though Lord Howard de Walden said, "I will agree to your conditions, provided you will agree to mine," he said, "You must agree before a given day." Before that time fresh objections were made by the Portuguese government to other points and Lord Howard de Walden was consequently unable to sign the treaty, and he came home without having concluded anything. This, however, was not the transaction upon which he (Lord Palmerston) had called upon the House last year to agree to the measure alluded to by the right hon. Baronet. He sent out another draft of a treaty to meet the objections of the Portuguese government, but securing in his opinion the powers and facilities we wanted to obtain. If the right hon. Baronet would look a little further into the papers he had been reading from, he would find another draft of a treaty, in which he (Lord Palmerston) expressed that he would be satisfied with the declaration that the slave trade was a piratical offence, and a great moral offence. The right hon. Baronet would also see in the progress of that correspondence that the Portuguese government not only refused to make the slave-trade piracy, but even objected to the epithet "piratical," which he had proposed to apply to that trade. But the grounds upon which he had come to Parliament last year to ask for the powers and authorities which Parliament afterwards granted, were not that part of the negotiations to which the papers read by the right hon. Baronet referred, but a subsequent stage of the proceedings, when the Portuguese government refused to agree to the modified draft in which the slave-trade was not required to be made piracy, but only denounced as a piratical offence, but, in which, also, the universal right of search was demanded, and the power of condemning all vessels under equipment, but without slaves on board; and in which draft likewise he distinctly refused insert that guarantee upon which the Portuguese government had laid so much stress, namely, that for a given time we would secure to the Portuguese government the possession of those parts of Africa which they demand to be considered as the colonies of Portugal, which would have required us to conquer large tracts of country not now possessed but claimed by Portugal. The second demand on their part was, that the treaty should be only temporary instead of being like all others, permanent. Those were the demands we refused to accede to—those on our part were the right of condemning ships equipped, but without slaves on board, and the extension of that power to all parts of the globe, instead of its being confined to the quarters north of the line.
by no means wished to disturb that harmony of feeling which seemed to pervade the House on the subject of the Address, but there were one or two points suggested by the right hon. Baronet to which he wished slightly to refer. The right hon. Gentleman had asked, whether it was the intention of her Majesty's Government to propose a vote with relation to those persons who were engaged in the late expedition in India? To this his reply was, his right hon. Friend, the President of the Board of Controul would give a notice on the subject. He differed from the right hon Baronet in the remarks he had made on the subject of Jamaica, inasmuch as he considered, that the happiness of that colony would have been far better secured by the former bill than it was by the present state of affairs. He was far from being satisfied with the administration of justice in Jamaica—he did not think, that justice had been fairly and impartially administered by certain parties there. Let the Assembly of Jamaica provide an adequate remedy for that evil—let them take measures to secure the fair and impartial administration of justice, and he would be then ready to accede to the suggestion of the right hon. Gentleman, that benefits had accrued from the course pursued last year; but he did not think the colony ought to be satisfied with a state in which justice was not properly dispensed, Till that should be the case, he could not express his entire satisfaction with the conduct of the Legislature. There was another colony to the state of which allusion had been briefly made in the Speech, and to which he would now only very shortly refer. He alluded to Canada. In the first place, he thought it was due to the government of the United States to say, that although he had formerly great reason to complain of outrages on the frontier, measures had been recently taken by the Government of America which were of a far more efficient character than they had formerly been. The military department had been superintended by officers, who had acted with the utmost good faith towards her Majesty's subjects, and even in the courts of Law in the United States there had been convictions of some of the brigands and robbers of the frontier. With respect to another part of the same subject, namely, the internal state of Canada, he was happy to say, that up to the present moment no accounts had been received of the breaking out of fresh disturbances, and the aspect of affairs was satisfactory in the opinion of persons who had been there, including that distinguished commander Lord Seaton (lately Sir J. Colborne) and that there was a more likely prospect of an agreement between the inhabitants of the two Canadas, than we had formerly reason to expect. It appeared, that the new Governor had convened the Special Council, and that they had passed several resolutions approving the union of the two provinces; and the Assembly of Lower Canada had expressed its willingness to bear a portion of the expenses incurred by the works in Upper Canada. The Assembly of Upper Canada had likewise agreed to the resolutions, and the Governor-general had expressed his hope of being able to transmit shortly to England the alterations to be made in the bill of last year. There was one other subject on which, if the House would permit him, he wished to state the intentions of her Majesty's Government. The right hon. Baronet had put a question to the Ministers with respect to the slave trade. Now, connected with that subject was the melancholy fact, that, notwithstanding all their exertions—notwithstanding the repeated addresses of both Houses of Parliamant—notwithstanding the treaties we had formed, and notwithstanding the vigilant attention of her Majesty's Ministers, and of the different Governments which had preceded them—notwithstanding the efforts that had been made to carry out the stipulations of the treaty, and put an end to the slave trade—notwithstanding all this, he said, the slave trade was still in a flourishing state, and hundreds and thousands of human beings were yearly sacrificed to this barbarous traffic. It was the intention of the Government to propose a vote to Parliament for the building of steam-vessels, with a view to extend and improve commercial relations up the river Niger, and in the hope of inducing people to believe, that in the cultivation of the rich productions of Africa, and in the peaceful and innocent occupation of agriculture, they would derive more pleasure, and become more happy, than they could hope to be by pursuing their present unhappy and mistaken line of policy.
said, there were two questions in relation to the Speech to which be wished to advert. One was the state of the currency of the country; and the other was the Corn-law. One of these was attributable to the right hon. Baronet opposite, and the other to the Duke of Wellington. These were the main causes of the commercial distress alluded to by her Majesty's Speech, and he hoped they would receive due attention soon after the Address had been agreed to.
Address referred to a committee.