House Of Commons
Tuesday, January 21, 1840.
MINUTES.] Bill. Read a first time:—Designs Copy, right.
Petitions presented. By Mr. Mackinnon, from Leamington, against the Constabulary Act.—By Mr. F. French, from the Medical Association of Ireland, for Medical Reform.—By Sir R. H. Inglis, from several places, for Increased Church Accommodation.—By Mr. F. Maule, from a number of places, against the introduction of Ministers into Parishes against the wishes and the will of the Parishioners.—By Mr. O'Connell, from a place in Monaghan County, against the restoration of Orange Domination in Ireland.—By Sir E. Knatchbull, and others, from a number of places, for Extension of the Church of England.
Naturalization Of Prince Albert
Messengers from the House of Lords brought down a bill for exhibiting a bill in the session for the naturalization of Prince Albert of Saxe Gotha, which was read a first time.
On the motion of Lord J. Russell, that the bill be read a second time,
requested that the noble Lord would state how far the bill was in exact conformity with the Act of Settlement, more especially with respect to the necessity which it imposed that the consort of the Sovereign, whether male or female, should be a Protestant [cries of "oh, oh," and laughter from the ministerial benches] as by law established, and should receive the communion of the Lord's Supper according to the rites of the Church of England.
replied that the bill he now proposed to read a second time did not at all affect or vary the Act of Settlement, and he could assure the right hon. Baronet, that he should be as unwilling as any hon. Member of that House to propose any change or alteration in that act. The bill provided only for the exhibition of a bill this session for the naturalization of Prince Albert, which secured to him certain rights as a British subject. He did not think that any objection could be taken to pursuing the same course in the case of Prince Albert as had been pursued in the case of Prince Leopold. He wished the bill to be now read a second time, and tomorrow he should propose to carry it through the rest of its stages.
Bill read a second time.
Privilege—Stockdale V Hansard
rose to present two petitions from the sheriffs, the prayer of which was the same, and the hon. and learned Gentleman then proceeded to state the substance of the petition. The petitioners stated that:—
And they went on to state:—"Your honourable House having resolved, that the petitioners have committed a breach of the privileges of this honourable House, and ordered them to refund the money levied on the goods of the Messrs. Hansard, under a fieri facias issuing from the Queen's Bench; and apprehending that this honourable House will proceed to visit them with punishment if they shall not refund that money, your petitioners humbly assure your honourable House that they are deeply sorry that they should have incurred the displeasure of this honourable House."
Petition brought up, and read."They feel it their duty solemnly to assure your honourable House that throughout the the case of Stockdale v. Hansard, your petitioners have acted with respect and obedience to what they had been advised, and verily believed it to be their duty to their Sovereign and the Court of Queen's Bench whose officers they were; that your petitioners are sworn, among other things, to duly return and truly serve all the Queen's writs, according to the best of their ability; and they verily, and in their true judgment and conscience, believe they are bound to 'obey' (according to the natural and ordinary interpretation of the oath as expounded by her Majesty's judges, 'the Queen's writs, according to the law and practice of the courts from which such writs issue,' and 'according to the exigency of said writs,' and your petitioners believe that if they fail so to obey the said writs, they will act in violation of the duty they owe to her Majesty the Queen, and that they will be compelled, in due course of law, to make good the sum which they are ordered by this honourable House to refund to Messrs. Hansard; and that if they refuse to make good this sum, they will be liable to attachment and imprisonment in one of her Majesty's gaols. And they further assure the House that throughout the whole of their proceedings they have endeavoured to give effect to the law as delivered by the judges of the Queen's Bench; and they pray they may not be amerced or imprisoned for having honestly endeavoured to discharge the duty cast upon them by law, according to the best of their judgment and ability, and according to what they in their conscience believe to be the solemn obligation of an oath."
rose for the purpose of moving that the petition be forthwith taken into consideration. If he could persuade himself that the noble Lord would not object to that motion—if he were convinced that the noble Lord would feel that this was a petition which imperatively called upon the Members of the House to proceed to consider it before the motion which had been adjourned, should again be taken into consideration, he (Mr. Kelly) should be happy to limit the observations he had to make, to the offering of his thanks to the noble Lord for the concession of that which he should, however, consider no more than an act of justice. But if the noble Lord should say, that he objected to taking the petition into consideration at the present moment—if the noble Lord should say, that a petition which called upon the House to consider whether it would amerce of his moneys or imprison in his person one of the subjects of this realm, for performing a public duty which was not of his own seeking, but which had been cast upon him, if he understood the noble Lord to say that a petition with such a prayer should not be taken into consideration until after the House had decided the question by actually committing the petitioner to gaol, then he should feel it his duty to press upon the House the motion he now proposed to make, namely, that the House do forthwith proceed with the consideration of the petition. Inferring from the noble Lord's silence that he objected to the motion, it became his duty to inform the House how the petitioner stood in relation to that honourable House and to the Court of Queen's Bench. At the time that Parliament was prorogued, when that House had no means whatever of interference, an action was brought by Mr. Stockdale, who, to whatever observations he might have rendered himself liable by Members of that House, had not, he apprehended, forfeited his rights as a subject of this realm. Mr. Stockdale commenced an action by due course of law against certain persons of the name of Hansard, for the publication of a defamatory libel reflecting upon him. With the commencement of the action the sheriffs had nothing whatever to do. The action proceeded as every action must proceed, whilst this free country was governed by the laws administered according to the undeviating practice of the courts. In the course of the action a writ was delivered to the sheriffs of Middlesex which rendered it necessary for those officers to empanel a jury to assess damages against Messrs. Hansard in favour of Mr. Stockdale. That writ was executed—the damages were assessed by the jury, and ultimately, judgment was obtained in the case. By course of law execution was issued in the action. The writ was delivered to the sheriffs of Middlesex, and it became their duty, unless the writ should be superseded by due course of law, to execute it. In the execution of the writ they seized certain property belonging to Messrs. Hansard, and that property was sold. The money, the produce of the sale, was paid into the hands of the sheriffs. The sheriffs, still acting according to law and the practice of the courts, retained the money until they were compelled to make a return of the writ to the Court of Queen's Bench. When that time arrived they returned, that which they were bound to return—the truth they stated that they had levied the money according to the writ, and that they had it ready in court for the court to dispose of according to law. In the mean time, certain proceedings took place in the House of Commons; but, also, in the mean time, Stockdale, the plaintiff in the suit, obtained a rule from the Court of Queen's Bench calling upon the sheriffs to show cause why they should not forthwith pay the money to him, who had recovered it by due course of law. He now came to what was the present situation of the sheriffs, the present situation of the action, and the state of the circumstances under which the House had felt itself called upon to proceed, and under which the sheriffs now appealed to the honourable feelings of the House as to the course that the House would pursue upon their petition. The rule which he had stated to have been obtained at the suit of the plaintiff, was resisted by the sheriffs, and he prayed the attention of the House to the mode in which the sheriffs had felt it their duty to resist that rule. If it were thought for one moment that the sheriffs had at any time disregarded the orders—the privileges of the House, nay, even the notices of persons who professed themselves to be the solicitors of the House, he trusted that the statement he was now about to make would entirely exonerate the sheriffs from such a suspicion, and make it appear that they had acted only in strict obedience to their duty, and with every respect alike to that House and to the court to which they were liable. The sheriffs have placed upon affidavit, and have brought under the consideration of the Court of Queen's Bench every resolution of the House—every notice given on the part of the House, or on the part of any of its servants, that could induce the Court of Queen's Bench to determine that the House possessed the privilege contended for, and, that, therefore, under, and by virtue of that privilege, the sheriffs were justified in withholding the money from the plaintiff, All these matters the sheriffs had carefully brought before the Court of Queen's Bench. It would be in the recollection of the House, that within these few days, certain resolutions had been adopted by the House, and that amongst these resolutions, there was one declaring that the sheriffs had been guilty of a breach of the privileges of the House. Further, the House had ordered the sheriffs upon its own authority to pay over to the Messrs. Hansard the money which had been levied upon their goods. It had been stated by his hon. and learned Friend the Attorney-general that this order on the part of the House would be a sufficient defence for the sheriffs to make in a court of law against any action that the plaintiff, Mr. Stock-dale, might bring. It had been also stated by the Attorney-general that such an order would constitute a sufficient reason for the sheriffs to show cause against the rule obtained by the plaintiff, calling upon them to show why the money should not forthwith be paid over to him. The Attorney, general, one of our highest legal authorities, expressly and distinctly declared that by the law of the land, upon such cause being shown, the Court of Queen's Bench would be bound to admit it as a sufficient answer, and to discharge the sheriffs from any further responsibility. The sheriff's had taken the advice of the Attorney-general—they had acted upon the suggestion of that eminent legal authority—they had done every thing that men could do in their situation. They had already stated upon affidavit, to the Court of Queen's Bench, the several proceedings in that House during the last four days that their case had been under consideration. They had brought the whole of these proceedings under the notice of the court, and they were prepared to urge to the court that those proceedings afforded an answer in point of law to the claim of the plaintiff in the action that the money he had recovered should be paid over to him. Independent of all this, he could state, from his own personal knowledge, that the sheriffs had that very day used every endeavour that the law and practice of the court would enable them to employ to bring the resolution of the House under the consideration of the Court of Queen's Bench. They earnestly and urgently endeavoured to have the motion heard that day, upon which they were or were not compelled to pay over this money to Mr. Stockdale. If the anxious desire of the sheriffs had been gratified, the Court of Queen's Bench would have had an opportunity of declaring whether the resolution of the House of Commons—that the money should be paid back to Hansard—was a defence in point of law to the sheriffs for not paying it over to the plaintiff. He would now state the result of those anxious endeavours on the part of the sheriffs. The application was made before a single judge—Mr. Justice Patteson—in the Bail Court. Mr. Justice Patteson was unable conveniently to hear the case to-day. He had other duties to perform which rendered it impossible. But the learned judge announced that he had communicated with the other judges of the Queen's Bench, sitting in full court, and that those learned judges, deeming the question one of great public importance, had determined, even to the displacing of other regular business of the court, that they would entertain the motion and hear counsel on both sides at the sitting of the court to-morrow. At the sitting of the court to-morrow morning all those matters which had been placed upon affidavit by the sheriffs—the claim of the House—the law as it had been laid down by the Attorney-general—would be brought under the consideration of the judges, who would then judicially determine whether the resolution of the House was or was not a sufficient justification to the sheriff for disobeying her Majesty's writ. All therefore that he should feel it his duty to do on the present occasion would be to submit to the House whether it were right, whether it were constitutional, whether it were just, whether it were humane, to send two innocent and honourable gentlemen to prison that night, when they told the House that to-morrow they would be enabled to obtain the decision of the court of law, by which decision they, in common with all other subjects in the kingdom, would be bound as to whether they should obey the order of the House or not? He asked the House whether, under such circumstances, it would consent to send these gentlemen precipitately to prison? All that he submitted was, that the petition of the sheriffs might be forthwith taken into consideration. Before he sat down, however, he would venture humbly to point out what he apprehended would be the consequence of either of two or three courses which it was possible the House might pursue. In the first place, the House might adjourn till to-morrow the consideration of the two questions now before it, namely, the taking this petition into immediate consideration, and the resumption of the adjourned debate. If the House chose to adopt that course, he apprehended that no injury would be done either to its privileges or to its dignity. The House would then be in the same position as it now stood, and would be enabled under no disadvantage to enter upon the final consideration of the case. But there would be this difference in the position of the gentlemen who presented the petition, that they would have had the guidance of a court of law as to the course they ought to pursue. But supposing that the House, instead of taking that mild, merciful, and just course, should persevere in debating the resolution proposed last night, that the sheriffs should be committed, he prayed hon. Members to consider in what a situation the sheriffs would then be placed. They would be committed to prison for not having paid over to the servant of the House certain money which had been recovered by a subject of the realm in due course of law. Now, before sunset to-morrow, upon the judgment of the Court of Queen's Bench, the sheriffs might be ordered to pay over the money to the plaintiff in the case; and by reason of their not having paid it over, if they should refuse to do so, they would then be liable either to further imprisonment and attachment from the Court of Queen's Bench, or attachment at the suit of Mr. Stockdale, who had recovered the money in due course of law. Now, suppose that the sheriffs should yield obedience to the order of the House, what would be the consequence? Within eight and forty hours the Court of Queen's Bench might, order the sheriffs to pay the money over to Mr. Stockdale; and the payment by them to Messrs. Hansard, by order of the House of Commons, was no answer in point of law to Mr. Stockdale. They would be ordered to pay the money over again to Mr. Stockdale. If they disobeyed that order, they would be committed by a writ of attachment to some of the gaols under the jurisdiction of the court. What power, in that case, would the House have to deliver the sheriffs from that custody? They would have no power to discharge them from the imprisonment. If the House were to assume a power which they had not, and were to order the Sergeant-at-Arms to proceed to the gaol and call upon the gaoler to liberate the sheriffs, and the gaoler were to be sufficiently respectful to obey the order and liberate them, then the gaoler himself would be liable to imprisonment for having obeyed the order of the House, and the sheriff's upon a new writ would be again liable to be committed. But suppose another course. It was possible that when the sheriff's should appear tomorrow before the Court of Queen's Bench, and should state to the court by their counsel, upon affidavits, the orders of that House, and the counsel should contend, as he doubted not they would feel it their duty to do, whatever might be their own private opinion of the law, that the House had the power to interpose during the progress of the suit to order the sheriff's to pay the money over differently from what they had been ordered by the Queen's Bench; and supposing the court, from deference to the assumed authority of the House of Commons, should refuse to recommit the sheriff's to gaol, but should leave the parties interested to proceed by action to recover the money—that was, leave it to Mr. Stockdale to bring his action against the sheriffs to recover the money—he begged to ask the noble Lord, and those who supported him, to consider in what situation the House would then be placed. He would suppose Mr. Stockdale to bring his action; what course were the sheriff's to take? Suppose the sheriffs should have yielded to the orders of the House, and should have paid the money over to Mr. Hansard—still, what course were they to take when the action was brought against them? If they suffered judgment to go by default, then, by the ordinary and immediate course of law, judgment would be finally signed against them, and Mr. Stockdale would recover his money with all the costs against the sheriffs. There was no power known to the law or constitution of this country that could prevent Mr. Stockdale from recovering the money, provided the sheriffs suffered judgment by default. But the sheriff's, having acted in obedience to the orders of the House of Commons, might apply to the House to support them in their defence in the action of Mr. Stockdale, and he hoped the House would feel it their duty to support the sheriff's in the execution of the orders they had themselves given. But how could the House support the sheriffs? It could only be by pleading to the action by due course of law, and when the action should come on to be tried, by urging before the Court of Queen's Bench that under the privileges of the House of Commons the sheriffs had a good defence. Why, there again they would be immediately submit- ing their privileges to the judgment of the court of law. He hoped that his hon. and learned Friend, the Attorney-general, would inform the House how they would be enabled hereafter to protect and defend the sheriffs, supposing those gentlemen should be disposed to obey the orders of the House. It must be by either one or the other of these two courses—either the House must allow the sheriff's to suffer judgment to go by default, or they must direct the Attorney General o apear to defend the action for them. In the one case there would be no defence at all; and in the other case the House, directly contrary to their own resolutions, would be submitting a question concerning their privileges to the decision of a court of law. He had, during these discussions, more than once heard hon. Members regret the course which from time to time had been taken by the House in this matter, without sufficient reflection as to what should be the next step, and what would be the ultimate consequences of all these proceedings. If the advice given by the right hon. Baronet, at a very early period of these debates, had been taken, although they would then have adopted a course which he could not conscientiously approve of, at least they would have been consistent, at least they would have acted upon one single, simple, imperishable and solid principle; at least they would have done that which, if the world should afterwards have impugned their proceedings, would have enabled them to have answered, "We believe this to be our undoubted privilege, and we have taken every step which the powers and the rules provided by this House have enabled us to take to maintain it." But it was because they had gone on rashly, step by step, without considering what the next step might be; it was because they had begun a course of which they were unable to see the end, that in every step and stage of the proceedings they had met with difficulties which they knew not how to overcome. They had flinched, they had paused, they had hesitated, they had trembled; and, by their whole conduct, had given a tone and character to their proceedings which was calculated to do anything but add to the reputation, credit, or honour of the House. He did hope that it would be felt by the House, even by the majority who sustained this claim of privilege, that, if they were entitled to the privileges they claimed, at least those privileges had been sufficiently upheld and vindicated by the House; hav- ing committed one who had frankly admitted before them that he had acted in defiance of their claim of privilege, that he had acted as a volunteer, and that he did so for the purpose of bringing their privilege into dispute. They had, by committing that man, sustained their claim, as far as they could sustain it; and surely that ought to be enough. Was it consistent with the duty they owed to their country to proceed further? How could they, who were the guardians of the liberties of the subject—they, who were the representatives of the people—they, who represented these very sheriffs who were now brought to their bar to defend themselves for having acted according to their sense of public duty, and according to law and their own consciences—how could they justify it to themselves, without any necessity, and after having committed the person who had avowed his purpose to dispute their privileges, nevertheless to lay their hands upon these innocent and honourable men, and, by way of farther establishing their claim, to imprison them, without giving them even the opportunity of trying their rights in a court of law? He hoped the House would pause, and give the sheriffs an opportunity to obtain the deliberate opinion of that court of which they were the sworn officers. The hon. and learned Gentleman concluded by moving that the petition be taken into consideration forthwith.
The Speaker said, the terms of the motion were informal. It had been agreed by the House that the petition should be printed, and it must, therefore, be printed with the votes.
would then beg leave to move that the Sheriff of Middlesex be called to the bar, and be forthwith discharged.
seconded the motion. The House ought not to direct their own energies against such "small deer" as the sheriffs, but should at once attack higher game—more worthy of their pursuit. Why not attack the beasts of the forest? Let them assail the lion in his den, and not worry the mere domestic animals. But they had not the power, or else they had not the courage, to pursue those who, if there were any guilty of contempt against their privileges, were the really guilty parties. The Court of Queen's Bench was so far as appeared by the affidavit on the table, legally cognisant of the resolutions and proceedings of the House; why, therefore, should they visit with condign punishment, the ministerial officers of the court, who had no power to refuse obedience to the authority of the judges, and suffer the judges themselves to escape? If the judges, after having full knowledge of the resolutions of the House, should persist in their previous course, then the House would have an object worth combating with; while, on the other hand, if the judges should decline resisting the claim of privilege on the part of the House of Commons, then the object sought for would have been gained without punishing those who were only their ministerial officers.
wished he could see, in the petition which was now under consideration, any reason which would justify the House in acceding to the motion of the hon. and learned Gentleman. He was ready to agree that, with regard to their general conduct, however they might have disobeyed the injunctions, and broken the privileges of the House, the sheriffs had certainly shown a very great desire, not at once to comply with the Court of Queen's Bench upon the question of the jurisdiction of the House of Commons, but to reserve that question for further consideration. He was also ready to admit, that in their conduct at the bar of the House, on a former day, they had shown every wish to pay respect to the House; but if he passed from that to the petition itself, he found, although they had heard from the Speaker, the resolutions of the House, that far from their being ready to conform to that decision, they attempted to justify the conduct which they had pursued, and expressed a determination that they should persist in the same course. The petition was, no doubt, framed in respectful terms towards the House; but it declared a determination not to submit to the resolution of the House, and a delaration that they were justfied in so acting; and it furthermore contained a request that the House would support them in that determination. Stated in this way, and looking upon the face of the petition itself, he could not say that the petition afforded any ground whatever, after the twenty-four hours' time for consideration which the sheriffs had had, for him to desist from the course which he had already thought it his duty to propose. But if he considered the speech of the hon. and learned Gentleman, he should see still far less reason in complying with the course recommended by him. For the whole speech of the hon. and learned Gentleman is this:—"There is a superior authority to you; there is a court which may perhaps, in the course of to-morrow, be kind and gracious enough to allow that there is some power and some privilege belonging to the House. They may decide the other way—that you have no power and no privilege; but wait, humbly wait—wait in patient expectation that perhaps something more favourable than has hitherto occurred, may be decided by the Court of Queen's Bench: but depend upon it, that you have no power or authority of your own; the sheriffs tell you they must submit to the Court of Queen's Bench; you must submit to the Court of Queen's Bench likewise; and whatever they decide, is the paramount law of this country." I confess (said the noble Lord) that although there have been great approaches to this language in the course of the debates we have had upon this subject, there has been nothing so directly asserting this supremacy as the speech of the hon. and learned Member for Ipswich. We have heard in former days, and the names of great lawyers have been quoted on the subject, protected by the name of Lord Coke, praises respecting the omnipotence of Parliament, exaggerated praises respecting the omnipotence of Parliament in this country; but whatever may be the omnipotence, or whatever the attributes—the extraordinary attributes—applied to any power of this country, it appears that, henceforward, they are not to belong to Parliament—they are to cease altogether to belong to Parliament—the Court of Queen's Bench is to be the power in this country; and whatever that Court decides to-morrow, is, the next day to be our law and constitution. What is it the hon. and learned Gentleman would say with respect to another question (with respect to a question which may create some interest, and some agitation in this House), I will mention the question involved in the motion which is to be brought forward on Wednesday next? Suppose, for a moment, a Member should be arrested, and the question of privilege from arrest should be raised—I care not to which side of the House the Member may belong; he may be taken from either side; it still may be a matter of considerable interest. I own I should be very much surprised if any hon. Member were to come forward and say, "It is true there has hitherto been a privilege which, in cases of this kind, would protect Mem- bers from arrest. It is very true that, in all former times, by the exertions of our ancestors, by the declarations of the House, and by the successful efforts of good and honest men, the Members of this House did acquire exemption from arrest; but, in the present day, we must wait the decision of the Queen's Bench. Towards the end of the term, the court may be kind enough to fix a day to decide whether you have any such privilege or not; and I should not be at all astonished if, at the end of the term, your Member would be discharged from arrest." I ask whether that is a position suitable to the dignity of the House of Commons? Yet that was the argument of the hon. and learned Gentleman. It all went to this, that the supremacy of the Court of Queen's Bench, with regard to all matters of privilege, was henceforth to be paramount. As to the objection of the hon. and learned Gentleman, that the privilege now claimed would over-ride matters of law, I beg to reply that, with regard to matters of law, we pretend to no jurisdiction whatever. It is because the conduct of these parties affects the jurisdiction, the authority, and the proceedings of this House, and not because it affects any question of law, that we have thought it our duty to interfere. I must say that the reproaches of the hon. and learned Member, with regard to our past conduct, tallies very ill with the course he now recommends us to pursue. It is very remarkable that the words the hon. and learned Member has used, describe exactly the kind of advice he himself has invited us to adopt. At the close of his speech the hon. and learned Gentleman said—"You have flinched, you have paused, you have hesitated, you have trembled;" and he concluded that we had lost our authority because we had flinched, and paused, and hesitated, and trembled. After hearing the hon. and learned Gentleman make this statement, I waited and listened attentively to his speech, to learn what was the advice he would give to the House in this case. And what did the hon. and learned Gentleman advise? Why, he advises you to pause. After declaring that you had already lost your authority because you had paused, the whole advice he gave you was that you should pause again. Perhaps, after all, he had too much respect for the opinions given by two eminent legal Gentlemen, one on each side of the House, to come to any other conclusion. My hon. and learned Friend, the Attorney-general, on this side, and the hon. and learned Member for Exeter on the other, advised us to go before the Court of Queen's Bench and pause. I do not know whether that advice was wrong: it is not my opinion that it was wrong; but, at all events, I am not disposed to agree with the hon. and learned Gentleman, and say that if we have lost our authority on that account, we ought to pursue the same course again; and that this is the peculiarly fitting opportunity for pausing, especially when it has been stated upon high grounds that an acknowledgment of the jurisdiction of the Court of Queen's Bench was that which gave the only hope or chance of our obtaining any privilege which the court may be pleased to allow. I say all this with very great respect, notwithstanding, for the Court of Queen's Bench. My opinion is, that if the question were again to be seriously considered by the judges, they would hardly support the decision which they have already given in opposition to what I think the better and wiser opinion of Lord Kenyon. I am hardly disposed to take the wholesale and broad proposition, that we have no other course to pursue than at once to submit our privileges to the decision that the Court of Queen's Bench may think proper to make. The sheriffs, in their petition, state that they have sworn "that they will duly return, serve, and execute all the Queen's writs sent to them." This is very true; but we have had it stated in evidence at the bar of the House, that on an injunction from the Court of Chancery being served on them, the sheriffs could not proceed to execute the Queen's writ from any other court. The order of the Court of Chancery would stand in the way of the execution of any such writ. We know, too, that if the Board of Green Cloth forbid the execution of a writ within the precincts of a royal palace, the sheriffs are prohibited. Therefore, don't tell me that an oath which is not observed when it comes in contact with the Court of Chancery, and which is not observed when it comes in contact with the Board of Green Cloth—that an oath which is good for nothing as against the Court of Chancery or Board of Green Cloth, becomes stringent and binding and paramount on the conscience when it comes in contact with the House of Commons; and that the sheriffs in that case, and in that case only, are bound to execute the writ. I have ob- served with great concern upon this occasion, as I have upon a great number of other occasions, that there is a disposition to strain an oath—not with a view to do that which is really and bona fide the purpose and intention of the oath—namely, to execute certain functions and certain offices according to the real meaning of that oath; but in order to strain it to some purpose which goes beyond the real meaning and intention of the oath, and which may suit the opinion of certain other persons who may judge of that oath. These sheriffs are bound to do their duty, according to the sense they entertain of their duty. But the real meaning of the oath which they have taken depends upon what is really the law upon this subject; and it depends as much upon what is the law of Parliament as it does upon what is the law declared in the courts of law. I have stated before, my opinion with respect to the sheriffs. It is not that I impute any moral blame to them with regard to their conduct on this occasion, but it is necessary for us to proceed according to that mode by which our privileges may be protected. The hon. Baronet, the Member for the university of Oxford, on several occasions has taunted us with not at once condemning the judges, and going against them. I might state in answer, that whenever Lord Denman shall desire an attachment to proceed against the Speaker of this House, we shall then call one of the judges of the court to the bar. But I find that when the courts of law and courts of equity have found themselves placed in a similar difficulty to that in which the House of Commons now is, they have proceeded in the manner in which we are now proceeding. I find in a very elaborate judgment of Chief Baron Eyre, where many points of law are ably discussed, but of which I shall not say anything, that that learned judge stated, that in case of conflicting jurisdictions, it was formerly the practice of the judges of the courts in which the actions were originally commenced to send writs to the judges of the other courts in which the actions had been subsequently brought, prohibiting them, from entertaining certain proceedings in certain actions; but the judges afterwards thought that the better mode would be to proceed against the officers of those courts, or against the individuals who brought the subsequent action, and not to send writs of injunction or prohibition against the judges, in order that the supreme authorities of the courts may not be brought into conflict. He thought that this rule laid been taught by experience, and had been found of great service; therefore, when in accordance with the practice he proceeded against the sheriffs, it was not with the view of accusing them of anything criminatory, but as the best means of vindicating the privileges of the House. He would, therefore, move, by way of amendment, that the House should proceed to the further consideration of the adjourned debate on the petition of Messrs. Hansard.
was understood to express his regret, that the present contest, which was one entirely between the House of Commons and the Court of Queen's Bench, should have gone on so far as it had. Even in the elaborate speech delivered by the right hon. Baronet, the Member for Tamworth, on the previous evening, he confessed he saw nothing to induce him to alter the opinion he had formed relative to the matter then before the House. That speech, powerful and eloquent as it was, did not carry conviction to his mind. Some of the positions in it could not be maintained, especially that which asserted the unrestricted right of the House of Commons to publish any portion of its proceedings it pleased. He denied, that the privilege of printing and circulation existed to the extent to which it was at present exercised. The right hon. Baronet had told them of the many advantages the public derived from the exercise of this so-called privilege, but he had not alluded to any of the evils which might result. Indeed, were all the proceedings of that House perfectly secret, as they were supposed to be, the printing and publishing of its papers could not be so injurious as it might, under the present circumstance, in some instances be; but at present, when their acts and speeches were so well known, the exercise of the power of publication might be converted into a species of the most intolerable tyranny. But he really thought the House had gone too far already in the present matter. He thought they had argued too much about the question of privilege; but they had not given sufficient attention to the consideration of the consequences likely to ensue from the course they were then adopting. What was the present case? Why, Mr. Stock-dale had only exercised the right of every Englishman to bring an action against an individual whom he believed had injured him; and the Court of Queen's Bench had been compelled to give its decision duly and regularly upon the case. It had decided that Messrs. Hansard should pay damages for the libellous matter which they had published, and a jury of Englishmen had given a verdict sanctioning such a view of the matter. What power, he would ask, was there in this country to interfere with the private rights of individuals? What authority could that House claim to set aside the verdict of a jury? If that House had the power of so doing, then, he would say, there was at once an end to all protection for the subject, to all security of property, and even personal liberty. He should regret exceedingly, that such a contest at the present existed, or should go on between the House of Commons, and the Court of Queen's Bench; and he for one, hoped the former would never achieve a victory over the latter, which would be so destructive to the best interests of this country. He concluded by expressing an anticipation and a wish, that the result of the present proceedings would be, that the country at large would rejoice, that a triumph of the law and constitution had taken place, and the popular voice would run into a strong expression of gratitude to those functionaries who had so fearlessly discharged their duty.
said he should have abstained from obtruding himself at all upon the attention of the House, were he not anxious to record, in justice to himself and his constituents, the opinion which he entertained on the present matter. For his part, he wished to disclaim any share in what he considered so degrading and dishonourable a transaction as the course the House was then pursuing. They went so far as to deny the right of any subject in this country to seek from a court of justice satisfaction or compensation for injury done. He fully agreed with the view of the present case taken by his hon. Friend the Member for Whitehaven; and having looked narrowly at all their proceedings, from the very commencement, he could not but consider them fraught with injustice and evil of great magnitude. The House had been, even from the first, in a false position. It was wrong all through when it authorised the sale of its documents. It was too evident that such was the opinion of the country, for a jury had more than once confirmed that opinion, He could not see how they were exercising their power justly or fairly in wreaking their vengeance on inferior officers, when they had not the courage to contest openly and manfully with those who were really disputing their privileges with them. For his part, he was as ready as any Member of that House to vindicate the legitimate exercise of any real privilege they possessed, but he was not prepared to carry that privilege beyond the just and legitimate bounds it ought never to exceed. The course the House was pursuing in the present case, however, was, in his mind, totally unworthy that assembly, and would not fail to bring down upon it the indignation, and the just indignation too, of the entire country. He was glad, indeed, that that House, even in its dastardly course, had not thought proper to proceed to any extremities with the judges of the Court of Queen's Bench. Such a proceeding would indeed be fraught with evil at the present time, when neither the laws nor those who administered them were so much respected as they ought to be. If the dignity of that House, he had only to say in conclusion, was only to be upheld, was only to be vindicated by coming thus into a collision with a court of justice, then he would observe that the meaning attached to the word "dignity" was very different from what he had heretofore understood it to be.
said, as the noble Lord opposite, the Secretary for the Colonies, had thought fit, in the course of his observations on the present matter, to attribute to the Gentleman on the side of the House opposite to the noble Lord the opinions that there was no such thing as the law of Parliament, and the only law was that which the Queen's Bench inculcated, he, for his part, should say that there was in his opinion a law and a custom of Parliament; and, further, that the Court of Queen's Bench had never denied the same. He utterly denied that Sir Robert Peel had sustained his position that the printing and publishing of its papers were necessary and essential to the functions of that House. There had been a difference of opinion on a material question in the present discussion, even amongst those who supported another view than that which he (Mr. Darby) took of it. The Queen's Bench differed as to whether this was a privilege of Parliament. The Attorney-general had differed, and even Mr. Serjeant Wilde, in a speech which he had made on this matter, and which was so much quoted, had asserted that this was not a privilege, but that it was a power of Parliament. The Attorney-general had asserted that it was a power over which there was no control—that it was an irresponsible power—and it was on this point that the Queen's Bench had come to issue with them, and had asserted that no power of such a kind could exist—that its limits should be defined. There was one part of the right hon. Baronet the Member for Tamworth's speech to which he would briefly refer. It had been said, that the publication and sale of Parliamentary papers were of the greatest utility in raising the popular feeling about particular questions, and that the slave-trade had been put an end to chiefly by this exercise of the privilege. Now, it so happened, that at the time alluded to, the sale of the papers was not permitted, and, therefore, the reasoning built upon that position should fail. The noble Lord opposite (Lord J. Russell) had thrown some ridicule on the judges for decisions to which they had come; but, if, instead of doing so, he endeavoured to amend the absurdities of the law of libel, by which the judges were bound, he would be effecting a much more useful piece of service to the country than lessening the respect due to those learned men, and the laws they administered, at a time, too, when he could ill afford to do such. For his part he believed the judges had only done what they were bound to do according to law. What the House of Commons claimed, in the present instance, the power to do, was in his opinion, neither the law nor the custom of Parliament. So far as the sale of the Parliamentary papers was concerned, he very much doubted the propriety of permitting it without a proper distinction. But to come to another consideration: he would just ask the noble Lord opposite one question, and that was, if he committed the sheriffs to prison in the present state of the country, and the sheriffs' offices were shut up, and their regular duties left unperformed, had he (Lord J. Russell) made up his mind to provide for the difficulties which should occur when these officers were deprived of their liberty. He firmly believed that the country would gain nothing by the present contest, and if that House exercised the power they claimed to possess, it would sink materially in the estimation of the country. Popular opinion was against the course they were taking, it was influencing the public strongly, and to that opinion the House would ultimately yield.
said, that it was an error from the commencement to have introduced the name of Stockdale. It would have been quite sufficient to have it stated in the evidence, that certain obscene works had been introduced into Newgate, without slating the name of the the party by whom they were so introduced. If that omission had been made, the House would not have been brought into its present difficulty. For the sake of the character of the House with the country, he must protest against this assumption of a power to interfere with the administration of the law. It was such conduct, in in the time of Cromwell, which first brought the House into disrepute with the people, and then caused its abolition. The House took upon itself the functions of a court of law, and amongst other instances ordered to be brought before them Naylor, of Bristol, on account of some religious opinions which he professed. At length Cromwell,
interfered, and told the House in very plain terms, that it must not proceed any further in that way, and the House might depend upon it, that if it proceeded in its present assumption of power, which did not constitutionally belong to it, some despot would be found to put it down altogether, and, in that case, it would fall without the sympathies of the people. The course adopted last night was inconsistent. The House proceeded against the sheriffs, who were bound to act ministerially under the orders of the court, but to be consistent, the House would be obliged at last to proceed against the judges."That stern dictator of a conquered Land,"
was sorry to find himself in opposition on the present question to many hon. Members with whom he usually voted in that House, and his alliance with whom he exulted and rejoiced in, because he believed, under Providence, that to the compact, unbroken union of Conservative party they must look for the salvation of the country. He was sorry, he repeated, to find himself opposed most strongly, and in principle, to the course pursued by the majority of those hon. Members with whom he usually acted, but he could not sit and listen to such arguments and expressions as had been advanced by his hon. and gallant Friend, the Member for Donegal (Colonel Conolly), without rising and entering his protest against them. Surely, when his hon. and gallant Friend applied the term "dastardly" to the resolutions of the House, he did not seriously mean to say that either the noble Lord opposite, or the right hon. Baronet near him (Sir R. Peel), had, in the course they had pursued on the present question, been guilty of any dastardly conduct. His hon. and gallant Friend had spoken with the characteristic warmth of his countrymen, and to that alone must be imputed the strength of his language, which, however, could not be seriously justified. He trusted, therefore, that his gallant Friend would "repent in sackcloth and ashes" of the expressions he had used. With regard to the question before the House, he was decidedly of opinion that they must maintain their privileges as well as all their other attributes. The hon. and learned Member for Ripon, whose authority on points of law he venerated, and he was not the less disposed to do so from the circumstance of his agreeing with him in the main in his political opinions, had repeatedly stated, that the privileges of the House of Commons would be safe in the keeping of the House of Lords. He could not assent to such proposition, as it was contrary to the established constitutional doctrine, that our privileges were vested in us for the purpose of protecting us in part from the encroachments of the other House of Legislature, as well as to the facts of history. Had not the House of Commons been engaged in repeated contests with the House of Lords on the subject of privileges, and had not the Lords about forty years after the period to which the claim of the privilege of publication is referred, imprisoned a Member of the House of Commons? Nor would he consent to surrender the privileges of the House of Commons to the courts of judicature. If the proceedings in the Court of Queen's Bench, in the case of "Stockdale v. Hansard," were referred to, it would be found that there was no ground whatever in them for ceding the right now claimed by the House. No man felt more deference and respect for the legal tribunals of the land than himself; but he would appeal to any Member of the House, whether, examining the judgments of the Court of Queen's Bench, he could possibly, be his acuteness and power of comparison what they might be, collect from them any clear, intelligible conclusion on the subject matter of their adjudication. They judged in this question upon data which were not fairly before them. So far as the legal data were concerned, he was ready to admit their decision was right; but the moment they entered upon the adjudication of a question of privilege they were incompetent to decide upon it as being matter for the discussion and decision of the House alone. When he listened to the arguments which had been urged in favour of the decision of the exercise of this judicial authority over the proceedings of the House, by the legal Members of Parliament who had spoken on it, he must confess he thought their judgments were cramped by the practises of their respective courts, and it were too apt to lead us among "the snares and pitfalls of the law." The argument in favour of the privileges of the House had been acknowledged by the Lord Chief Justice in his judgment, that of necessity being the ground-work of them. It would be unnecessary for him to enter upon it, as it had been already so amply and ably expounded by the right hon. Baronet, the Member for Tamworth, whose speech he listened to, not so much with admiration of his acknowledged abilities, as with the conviction, that its practical wisdom would produce a deep impression on the public mind. He might be obnoxious if he attempted to do so, to the imputation offered by Mr. Pitt on a young Member of the House, Lord (then Mr.) Erskine, who had spoken after Mr. Fox, when he observed, "The hon. Gentleman has followed the steps of his right hon. Leader, weakening his arguments as he went along." He would remark, however, that the Members of the House on the other side of the question, who had discussed the argument, deduced from necessity and the expediency of the privileges, had adopted a most inconsistent course; as they ought, in pursuance of their own reasonings, to consult the courts of law, and not to presume to exercise their free and unbiassed judgment on the question. They had crept, rather than boldly advanced, into the question, and had argued with the terrors of the Court of Queen's Bench impending on them. There was one practical point referred to by his hon. Friend, the Member for West Sussex, who had stated, that there would be no provision for the discharge of the duties of the sheriffs, should they be committed to custody. His hon. Friend, the Recorder of the city of London, had informed him, that they would devolve on the coroner of Middlesex, and there was that hon. Functionary opposite, ready to assume them, and every one knew how zealous he was in the duties of his present office. Much had been said of the view the people of this country took of the question. He was persuaded, that if those who differed from him relied on the stability of support out of doors, they would find sooner or later, that they had committed themselves to a transient, though perhaps noisy, torrent of popular tumult, and not to the comparatively silent, but deep, strong, and resistless stream of public opinion. And regarding it as quite within the bounds of probability that the Parliament was within a month of its dissolution, he would openly state that if there was one point of his public conduct in which he would be more ready to meet his numerous and respectable constituents on the hustings, it was that of his vote on the matter now at issue, which had invariably been in support of the undoubted privileges of the House. He would respectfully urge the noble Lord to pursue his present arduous but just course. He would say, "Tunc cede malis ad contra audentior ito." Differing as he did from the noble Lord in many, indeed almost all his views of policy, and execrating as he had often done, the noble Lord's conduct in that House, as a Minister, be could not help expressing his belief, that when some future constitutional historian should record the proceedings of the present age, whilst many of the noble Lord's acts would either pass into the oblivion which they merited, or would only be remembered to be execrated and abhorred, his conduct on the present occasion would be regarded as one bright spot in his political career, and would obtain for him the reputation of having so far proved himself one of the firmest assertors of the privileges and one of the stoutest conservators of the liberties and immunities of the House.
said, that the cases of conflicting jurisdiction between common law courts and Chancery courts which had been mentioned in the course of the debate as illustrations, bore no analogy to the question before the House. He could not conceive anything more dangerous than that their privileges should stand upon the mere name of privilege; nor did he think anything could be more destructive of the rights and privileges of the subject than that this claim should be made and enforced in the manner proposed. He admitted, that whatever privilege was necessary to the proper discharge of their duty must be conceded to the House; but he denied that an indiscriminate publication of papers was necessary to the due exercise of their functions. The arguments of the noble Lord, the Member for Northumberland, and those of the right hon. Baronet, the Member for Tamworth, rested on a system that was better honoured in the breach than in the observance—the system of agitation, instead of upon due deliberation and a calm view of the case. He had never advanced to the consideration of any subject with more cofidence than he had to this question, and he must say, that he had no doubt the House was in error, and that the sooner they retired from the contest the better for the character of the House and the liberties of the people.
said, that he should not have offered himself to the attention of the House on the present occasion, but for the fact that he was implicated as the person who had recommended the publication of the papers which had raised the whole question now before the House. It appeared to him that not one amongst the various privileges appertaining to that House was of greater importance to the true interests of the people than was the right of publishing reports of committees. The evidence given before committees of that House was peculiarly calculated to bring to light truths of great moment to the people of this country. It was not only of importance to the people to know the facts disclosed in that evidence, but it was highly important to the representatives of the people, and eventually to the community at large, that public opinion upon those great subjects into which committees inquired should be collected by means of submitting to general perusal the evidence of well-informed and intelligent witnesses which such committees from time to time laid before the House, and the House sent forth to the public. It was thus by collecting public sentiment that useful reforms were effected. He admitted that it was with great regret that he recommended the House to act against the sheriffs, who were merely ministerial officers, and who had on the occasion in question acted with great prudence, with great caution, and with every disposition to avoid any step calculated to irritate the House of Commons. Attempts had been made to cast imputations upon the House, as if they had shown a disposition to go out of their way for the purpose of asserting the privilege which had given rise to the present discussion. In his opinion nothing could be more unjust than such an accusation. The House had, on the contrary, been most patient under the attacks made upon their privilege. The consideration of the subject had been put off as long as possible. He very much regretted that the position in which the House were placed imposed upon them the necessity of dealing as he felt they must deal with the sheriffs; it would have been much better if they could have had Lord Denman at the bar; to that, however, there was a technical objection; but there was no objection to the appearance at the bar of Mr. Justice Littledale. The subject was one of unusual—he might say of unparalleled, interest, and there was no fact, no authority, which could be referred to upon such an occasion that ought to be deemed superfluous; but the authority to which he should refer was one of no trifling weight, and one, too, which he presumed the hon. and learned Recorder of London would listen to with respect, namely, the late Lord Ellenborough, by whom it was said that the thing was too plain for argument. (Mr. Law "What thing?") The power of the House to vindicate its own privilege. Nothing could be more certain than this, that unless the House retained and exercised the power of publishing reports of committees, it would be impossible for them to discharge the functions with which they were invested by the constitution in a manner advantageous to themselves and to the community at large, unless they had that power—and power and privilege were the same. Unless, he would repeat, they exercised that power-it would be idle for them to call themselves the Commons of England. He believed it incumbent upon every man to support the House of Commons in this assertion of its powers.
could not avoid saying a few words as to the position in which the sheriffs stood, as regarded this question. They had not attempted to oppose the authority of the House, but had merely done their best to act according to law upon the best advice they could get. It might have been supposed that, before any ordinarily constituted tribunal, the perfect innocence of the supposed offending party would have afforded an ingredient in the consideration of his punishment. But, unhappily, such was the peculiar constitution of the present tribunal, so precarious were its privileges, that whatever might be the degree of innocence or guilt of the party accused, it was conceived to be necessary to exert its power to the very utmost. In the present instance the sheriffs had merely acted as the Ministerial officer of the Court of Queen's Bench, and had executed the writ of her Majesty, which, according to his oath and the exigency of his office, he was bound to execute. Surely the peculiar position in which the sheriffs stood ought to be considered in deciding upon the degree of their punishment. He contended also, that the privilege of unlimited publication claimed by the hon. Member for Kilkenny, and other hon. Members opposite, was in itself productive of practical injustice. The words of the resolution of 1837 were,
Why, in 99 cases out of a 100, the papers of the House were published as a matter of course, and without the slightest previous consideration of what was conducive to the interests of the public. The wildest theorist who could persuade the House of Commons to grant him a select committee was at liberty to extract from witnesses whatever he might think fit, and such matter would be afterwards published by authority of the House, perhaps to the great detriment of individuals, without their having the advantage of cross-examining the witnesses, or the opportunity of defending themselves. There was nothing whatever to prevent any matter, of whatever kind it might be, from going forth to the public sanction by the authority of the House. It was notoriously untrue that the House was at all cognizant of the contents of these publications, and he maintained that, before such unlimited publication was resorted to, some means should be taken to ascertain the truth or untruth of the statements so disseminated. But it might be said, that even although the facts might not be true, still the interests of the people required that the privileges of the House should be maintained. What! was it argued that a person aggrieved by the publication of an untruth should not be allowed the ordinary privilege of traversing the truth of the facts stated, and of proving them, if possible, untrue? On the broad principle of justice, ought any body, however important, to have the right of publishing libels on individuals, without those individuals being afforded the opportunity of proving the untruth of the facts so published? It was a monstrous exercise of tyranny to assume, although the contents of a publication might be unknown to the House, where there was, indeed, nothing on which the judgment of the House could have been exercised, that the House was to clothe its printer, whose service was performed for pecuniary profit, with an indemnity to secure him from the consequences of his illegal acts. The only legitimate foundation of the privileges of that House was, that they formed parcel of the law of Parliament and they were parcel of the law of Parliament only because they were parcel of the law of the land. Before he was prepared to concede such such a privilege as that now sought to be established by that House, he must have some better legal authority than a mere party majority—something better than the mere authority of a ministerial majority, aided by a very small fraction of the Conservative party. He was not prepared to yield the great constitutional doctrine, that the tribunal to whom you allowed the case to be referred, with a view to their decision on it, had not the power of examining into the merits of the case. He was satisfied, that this was not the law of the country; he was satisfied, that whatever might be the success for the moment of those who advised such a view of the law as had been adopted by the majority of the House, when time had been afforded, and when there had been experience of the matter, the voices of those who sent you here will determine this constitutional point. He was satisfied, that it was not a privilege enjoyed by that House; it was not enjoyed from the people, nor was it for the benefit of the people—on the contrary, that it was meant to oppress the people. In fact, it was turning the arms against those who placed them in your hands; but they will have the opportunity of showing you, that they have the power of disannulling your acts in this respect, and that, although you may call yourselves their representatives, they will not support you in your proceedings. Time would teach Gentlemen opposite this lesson, and he was satisfied of this, without wearying the House with argument, which, indeed, had been exhausted by those whom he followed at a humble distance, and who had preceded him in the debate, in support of the side which he took. He had no hesitation in stating it as his deliberate conviction, that the arguments that had been put forth by the opposite side were not grounded on the law of Parliament, and still less on the law of the land. On the other hand, if he had had any doubts, they had all been removed, and he had been perfectly convinced by the able arguments of the right hon. Member for Ripon and his most learned colleague. No answer had hitherto been furnished to their arguments, either in point of law or reason, and he believed, that they were irrefragable. He was satisfied, that he should desert his duty to his constituents and the people, if he surrendered to the House such a power as was now demanded, and which he believed, in his conscience, was illegal and unconstitutional, and that it ought never to be exercised by the Commons House of Parliament. He had deviated a little from the petition, but not from the line of argument that had been pursued in that House during the present debate. He submitted humbly and diffidently in a matter of judgment, but he could not depart from a conscientious conviction as to the effect of this alleged privilege. He readily admitted, that the Attorney-general had argued the side that he adopted with great ability and learning, and he was not unmindful of the able and powerful speech of a late Member of that House, the present Solicitor-general; he was not unconscious of the merits of those speeches, but he had also heard the matter argued with great ability by the most learned advocates in Westminster Hall, the great majority of whom agreed in the opinion, that the course taken by that House was contrary to law and justice. In his judgment, as an humble constitutional lawyer, he believed, that if they persisted in the course proposed by the noble Lord, the Secretary for the Colonies, it would be a violation of the prerogatives of the Crown, an infraction of the rights of the courts of justice, and a subversion of the liberty of the subject. Before they endeavoured to bring into contempt those tribunals to which they might all have occasion to refer for protection against infringements of their rights and liberties, and by whom, under Providence, he believed, that the liberties of this country were rendered more secure than by anything else, he trusted that they would pause, and consider the probable consequences of their proceedings. In those courts of justice the judges that presided in the present day were in no respect inferior to their predecessors; and those courts, as in the worst of times in past ages, by holding the balance between party and party in their angry conflicts, might preserve and secure the liberties of the country. Before they resorted to this desperate act—before they proceeded to take this desperate step of committing persons to prison as criminals for only observing the oaths they had taken of performing their duty to those whose just orders they were sworn to obey—before they took this desperate step, he implored the House to pause and hesitate, and consider the consequences that were likely to ensue from bringing into disrespect and contempt the first judicial tribunal in the country. Having shrunk from taking any part in the first instance, and having at length proceeded step by step, the House allowed the matter to be referred to the decision of the court, and that having been against them, they had now taken it into their own hands, and appeared resolved to determine it in their own favour. Having made manifest the infirmity of the cause in the Court of Queen's Bench by the decision against them, and still more by abstaining from taking any other step to test the validity of that decision, which must be confirmed in the Exchequer Chamber, and confirmed in the House of Lords, before it was finally settled, they showed, that they feared the result by the steps they had taken. If this was not their impression, was it either honest or consistent to adopt the proceeding which they had against the mere Ministerial officers of the Queen for discharging the duties which they were sworn to perform? The House submitted the matter on the point of law to the decision of the highest common-law tribunals in the country, and when it was satisfied, that the case would be decided against it, and that the claim that was propounded was not tenable in law, but would be scouted in any court of justice in the country, was it just or honest to adopt the line of conduct that had been pursued? He trusted, that the House would yet pause, before it took the desperate alternative that had been proposed to them. He implored them, before they committed to prison those individuals who had been admitted by the leaders on both sides of the House to be void of all moral guilt, and who, in their proceedings, had afforded the House every facility and had given it every assistance, and had interposed every delay before they took any step which they were obliged by law to take, before they yielded to the orders of the legal tribunal which they were sworn to obey—to reflect well on the consequences that were likely to follow. He cautioned them against inflicting punishment on these individuals, who had manifested every inclination and had done everything in their power to obey them. He had further to entreat the House, that if they took a step of so arbitrary a nature, that they would put on record the reasons of the course they took, and in alleging that the parties had been guilty of a breach of their privileges, that the measure should be declared and submitted to public opinion, to which Gentlemen opposite professed themselves so anxious to appeal, and to allow it to decide, whether it were right or just thus to commit public officers of the Crown, for the conscientious discharge of an arduous duty. Tender as Gentlemen opposite appeared to be of the rights of the people, they seemed to forget, that the sheriffs were elected to their important offices by not less than 9,000 of their fellow citizens This privilege had been conferred upon the citizens of London by the Sovereign at a remote period. He would remind the House, that those sheriffs were elected by one of the largest constituent bodies in the kingdom, and they were sworn to the discharge of their duties, for the performance of which the House now assumed the right of punishing them. These officers were sworn to do right as well to poor as to rich in all things belonging to their office, and all that they had been charged with had resulted from the discharge of their duty. That they were anxious that their conduct should be void of offence to all, was made apparent not less by their examination than by the petition they had presented. They had proved themselves innocent of all lawful offence, but merely for declining to violate the oath they had taken to obey a judicial tribunal, they are to be committed to the custody of the sergeant-at-arms. It appeared to him, that the present proceeding was nothing more nor less than an attempt to extort So much money from the pocket of the sheriffs. You admit, that they have incurred no moral guilt, but you say to them, assist us to rob the plaintiff, and we will dismiss you, but if you refuse you shall be committed."That the power of publishing such of its reports, votes, and proceedings, as it shall deem necessary or conducive to the public interest, is an essential incident to the constitutional functions of Parliament, more especially of this House, as the representative portion of it."
would throw himself on the indulgence of the House for a few minutes instating his opinion on this subject, as it was different from that generally entertained by the profession to which he belonged, and he would not be thought to withhold it because it was unpopular. It appeared to him, that his hon. and learned Friends opposite had misstated the question now to be decided by the House. He argued, with his hon. and learned Friend who spoke last, that the House was now sitting as a Court of Parliament with the view of adjudicating in the particular matter of Mr. Hansard, and of exercising their power in protecting him, and preventing his goods being taken away and handed over to Mr. Stockdale. His hon. and learned Friend had argued at great length against the resolutions of 1837. It might be true that these resolutions were wider than was absolutely necessary; but the validity of these resolutions to their full extent was not called in question in the present case. They had to consider only whether they were justified in protecting Mr. Hansard. His hon. and learned Friend had argued with respect to the evils of that House printing papers and documents without reference to their being true or false. He complained that this was a great evil, and said that they should not persist on this course of printing papers, as if that had anything to do with the present proceeding. They were told that public opinion was excited against them; but if it was recollected, that the publication complained of in the present case was one which was perfectly lawful, the alarm in the public mind might be lessened. In the first case of Stockdale v. Hansard, it was on the record that the matter went to the jury, as to the publication being a libel, and it was found by the jury to be perfectly true, and, therefore, in that respect the publication of the report in question was lawful, quite independent of the question of privilege. The defendant was justified in law in that publication, without resorting to the plea of the privilege of Parliament. The result of the first proceeding showed that, in this particular publication, Mr. Hansard was justified in printing it without reference to the privilege of that House. Any individual, without regard to the privilege of Parliament, was justified in printing what was true; therefore, in the proceedings that they had taken, they were not protecting a libeller, as had been assumed by Gentlemen opposite, but a servant of the House of Commons, in the discharge of a duty lawful according to the common law, independent of the law of Parliament, and they were protecting him from a person who had not been injured, but had been found on record to be a libeller of the most disgusting description, and entitled to no redress. The question, therefore, rested on narrower grounds than those against which the arguments of the hon. and learned Member for Ripon had been directed. A great portion of the debate had been occupied in endeavouring to establish the right of the House to publish its proceedings. This part of the case had been most powerfully illustrated in the eloquent and able speeches of the right hon. Members for Tam-worth and Northumberland. He would not weaken their arguments by again going over the grounds they had had taken. They should remember that if public opinion was in a healthful state, they were likely to have good Government; but if it became corrupt, they might again have a bigoted and tyrannical Government. To protect them from the latter, it was necessary that the public mind should be kept enlightened; and, therefore, it was essential to the privileges of that House that they should have the right to give any information to the public at large. But that right could not be effectually exercised, unless other privileges of that House were protected, namely, the power of adjudicating on their own privileges, and of punishing any breach of them, either by direct act of obstruction, or indirectly, by resorting to legal proceedings. He submitted it was clear, that the House had alone the power of deciding with respect to the powers vested in it; and it was essential to their privileges that they should refuse the power to any court to decide what privileges they had. If they looked into history, it would appear that when a question of the kind arose it was adjudicated by the House, and it alone determined on the privileges that existed, and as to what were breaches of those privileges; and on any such determination the House, in the language of lawyers, committed the party in execution, and this was equivalent to a judgment of any other court. History furnished many illustrations of the evils that must arise from allowing other tribunals than themselves to decide on their privileges. He should like to know whether in history they had not authority for saying that corrupt judges had existed who had endeavoured to trample on their privileges, and who could say that such persons might not again exist. When the separation of the Commons from the Lords took place, before any question was adjudicated on by the judges, or before any matter was propounded in which the opinion of the judges could be taken, it was asserted on the first hour of their meeting that they had the privileges which they possessed in the present day, namely, that they had the right to all the privileges essential to the performance of their functions. It had been contended by hon. Members on the other side, that whether their privileges existed or not was a matter to be decided by the judges before whom the matter was to be brought for adjudication. He would appeal to the history of this country previous to the reign of George 3rd, when the judges were made independent of the Crown, and were no longer removeable at pleasure—was it probable that the privileges had been obtained from judges remarkable for their servility and subserviency to the Crown? In illustration of this, he would merely allude to such names as Jeffries and Scroggs, names infamous at all periods of history, and it was hardly to be expected that such persons would entertain any great regard or respect for the privileges of the House of Commons. Such men, who relied on the power of the Crown for their continuance in office, and who were utterly void of independence and character, being judges in their day, he would ask, whether it was probable that the privileges of the House of Commons were derived from that source? And although the remark was not at all applicable in the present day, still as a matter of history, they should consider whether such judges might not exist in the future. Although there was no probability of any such unhappy result arising in the present reign, still it was possible that a Sovereign with very different feelings might possess the Crown; and under a Sovereign resembling the Kings of former times, and being men of ferocious bigotry, who would say that they might not find it convenient to appoint such judges? If the privileges of that House were to be subject to the opinion of courts of law, was it competent for them to assert that that House had within itself privileges adequate to the discharge of all its functions? the judges could never give their opinion on a question of privilege, until it was brought before them, and it would be argued, how could the House have these privileges if they were obliged to refer to the opinions of others, and to get the arbitrator to decide in their favour, before they could exercise them? If they took the opinion of a lawyer upon any subject, he would not give it merely taking into consideration what judges had previously decided, or what his own judgment would be on the point, he must calculate on what would be the opinion of the judges who were to decide the case. It had been said that a committal under a Speaker's warrant could not be questioned in any court; but if the Speaker put the ground of committal in the warrant, it was competent for other courts to try the matter, if the action was brought for false imprisonment. Who would say that such a case might not arise in the present day, as Lord Denman had said that he differed from all the other judges, and agreed in the opinion of Lord Chief Justice Holt, that if the ground of committal was stated in the warrant, they had a right to question the legality of it, and a party might try the case in any court. Were they to have their privileges questioned under these circumstances, and were they to leave them on an uncertain footing, when they still determined that it was necessary that they should have all the powers necessary for the due discharge of their functions? The noble Lord, the Member for Hertford had argued that the whole question should be left to the decision of the judges, on the ground that the House had acted arbitrarily and unjustly in certain cases, and brought forward in illustration of this, the old stories of the rabbits of Lord Galway, and the fish of Admiral Griffith; but did the proceeding in these two cases justify their resorting to the extraordinary step of declaring that the judges should determine what was and what was not privilege? But in these two cases the man who took the rabbits and he who took the carp would probably have been dealt with in the same way before any petty sessions; but instead of this, it was made a question of privilege, and they were punished by a tribunal not exactly conformable to the law. He was not justifying the proceeding in the case, but the poacher and the purloiner of the fish were dealt with by the House in a way in which this House would not now proceed. Again, freedom of speech in Parliament was essential to its existence. Would the noble Lord or any other Member take the opinion of such judges as existed in Charles the 1st's time? For what was the opinion that they gave as to the extent to which freedom of speech existed in this House? He begged the House to consider well the rule laid down by this body as to the extent to which liberty of speech should be allowed. The question propounded to them was, whether a Parliament man committing an offence against the King or Council, not in a Parliament way, might, after the Parliament ended, be punished or not? The judges una voce answered "he might, if he be not punished for it in Parliament; for the Parliament shall not give privilege, contra morem Parliamentarium, to exceed the limits of his place and duty." And all agreed, that "regularly he cannot be compelled out of Parliament to answer things done in Parliament in a Parliamentary course, but it is otherwise where things are done exorbitantly, for those are not the acts of a court." Here was then an answer where a definite rule was required for their guidance as to the extent of freedom of speech. Who was to form the test of the extent of this? Why if any Member of Parliament spoke in any manner which a person disapproved, it would depend on the decision of a judge whether he should be proceeded against or not. This was the decision of the judges in the reign of Queen Elizabeth, which had been alluded to by the right hon. Baronet opposite, and strongly dwelt upon in the powerful argument of the Attorney-general, who deserved the gratitude of the country, notwithstanding the attacks of the other side for the way in which he proceeded in this matter. Again, they had the very remarkable case that occurred in the reign of Richard the 2nd, when the judges, in answer to questions from the King, said—"that if any Members of Parliament acted contrary to the King's pleasure, made known therein, they deserved death, and ought to be punished as traitors." He did not press this on the House as being likely to occur to that extent in the present day, but if unhappily, a king should come to the Throne who wished to put down the liberties of the people of this country, he had very little doubt of his being able to find judges in the nineteenth century nearly resembling those he had just alluded to. He sincerely hoped, that the House would not depart from the course their predecessors had ever pursued, and suffer their privileges to depart from them by submitting them to the decision of any other tribunal than themselves, for that would be the inevitable result, if they allowed the judges to decide what was or what was not Parliamentary privilege. The maintenance of the full privileges of the House was essential. Any abandonment of them would be productive of the utmost inconvenience and danger to the House itself and to the people it represented. In what a position would the House be, if it resigned to the courts of law the decision upon its privileges? Suppose that a Member of the House, in his place in the House, were to bring an accusation against some public functionary, some governor of a colony, for instance, and the party impugned were to bring an action for slander against the Member in a court of law, was the House of Commons, indeed, not to interfere and say, "It is our privilege to utter what we please in the House; we will not meet you in a court of law, and we will send you and all other parties to the suit to prison, if you dare to proceed;" or must the Speaker, as was contended by the minority on this question, go into the court of law and meet the parties there? What would be the result of this submission to the court of law? The Member would plead this justification, that he was a Member of Parliament, and that what he had said he had spoken in his place in the House; but to the Member thus meeting a party in a court of law the plaintiff might offer this opposition. He might, as he would be fully entitled to do, deny the justification, and bring into question the fact of the Member's being a Member, and this was a point which it might be excessively difficult for the Member to prove in a court of law. Was it to be said, that any person who chose to complain of a Member of the House in a court of law, was to be placed in a position of such advantage over the Member? Suppose that a Member of the House, as he was coming through the lobby happened to give displeasure to some person there, and the person chose to assault the Member. This would be an undoubted breach of privilege; the Member would probably come into the House, state what had happened, and the offender would be brought to the bar of the House, and in all probability be committed and taken away to prison. Was it to be permitted to that man so committed to impugn by course of law the validity of his commitment? Had he a right to bring an action of trespass against all the Members of the House who had voted for the commitment, and were all those Members to be placed under the necessity of justifying the manner to which he had adverted? Was it to be said, that Members were thus to be liable to an action of trespass in any county which the party might choose to select; or was it to be said, that the party might go with impunity, with success, before the quarter sessions, and indict the Member, and every Member of that House, for assault? Suppose such a bill found, and it would not be unlikely, under circumstances of public excitement, was it to be thought of, that the Speaker of the House of Commons should go, as go they must, before the hon. and learned Gentleman, the Recorder, at the Old Bailey, as defendants? He (Mr. Erle) would submit, that it would be utterly inconsistent with the due performance of the functions of the House, that any person, very possibly a wilful wrong-doer, should have it in his power to occasion this great inconvenience. True, the Attorney-general would have the power at any time of stopping any such proceeding; but was a point of such importance to depend upon the discretion of the Attorney-general for the time being? and was it to be left in the power of any person, of a Mr. Stock- dale, for instance, thus to harass, and insult, and degrade the House of Commons? The hon. Member for Liverpool (Mr. Creswell), had argued, that the suffering judgment to go by default was necessarily an admission of wrong; but the hon. and learned Gentleman must recollect, that it had been decided, that the suffering judgment to go by default was not an admission of wrong, where the party who took the step did it because he intended to withdraw the case from the cognizance of the court. The present position of the sheriffs, between two opposite claimants, was no novelty for them: they had frequently to decide between two claimants, and if they made their election wrong they were answerable to the other party. He believed there was no Gentleman who voted with the noble Lord who did not lament, that anything should fall hardly on the sheriffs. But this was a question in which the whole people of England, now and for ages to come, were deeply concerned; and even though the result to-night might fall hardly on these gentlemen, the House, as trustees for this important privilege, were bound not to permit any consideration for individuals to interfere with the strict performance of their duty to the people of Great Britain.
said, as there were some cries of question, that he hoped those who were in the majority would allow the minority an opportunity of expressing the reasons On which their votes would be founded. The hon. and learned Gentleman who last addressed the House had referred to the conduct of the judges in the age of Charles 1st, maintaining the claim of privilege at present in issue. It was but fair in argument, if the hon. and learned Gentleman referred to the conduct of the judges in the age of Charles 1st, that he should be permitted to allude to the conduct of the House of Commons at the same period. To illustrate the exercise of privilege by the House of Commons, he certainly would not cite those familiar instances of a tyrannical, and, perhaps, somewhat ludicrous character, which had been alluded to by the hon. and learned Gentleman. But let it not be forgotten that the House of Commons, in that favourite age to which the hon. and learned Gentleman had thought proper to refer, considered as a breach of privilege, not only every species of conduct which was now considered as most befit- ting freemen, living under a constitutional Government, but, in fact, perpetrated every act of enormity and tyranny which the imagination could conceive. Let it be remembered, that the House of Commons in that very age fixed on by the hon. and learned Gentleman to decide this question, so far as the judges were concerned, appointed a committee to sequestrate, according to their arbitrary decision, the estates of the gentlemen of England, and the Members of that committee purchased at a price fixed by themselves the lands which they sequestered. That was the privilege of the House of Commons in the age of Charles 1st. Again, in that same age, the House of Commons had declared that any definition of the Trinity which did not agree with the opinion of the majority of that House, was a breach of privilege. Let the House remember, too, that in that same age of Charles 1st, the House of Commons called a fanatical Quaker to the Bar of the House: and because he entertained some opinions respecting some of the most abstruse mysteries of revelation which did not accord with the creed of the majority, they ordered him to be branded with a hot iron; he was then allowed to retire, and afterwards ordered back to the bar, and then because he persisted in the unfortunate mistake which the majority did not sanction, the House ordered his tongue to be bored through. This was another privilege of the House of Commons in the age which the hon. and learned Gentleman took as the basis of his argument. Let hon. Gentlemen remember, that the same House, in the plenitude of its power, after it had, by an exercise of its privilege, sent eight bishops to the Tower in one morning, when it met for the transaction of business and found it had nothing to do, but that a considerable sum had been paid into the Exchequer, voted that this sum should be distributed among the Members of the House. This was another of the privileges of the House of Commons in the age of Charles 1st, so quoted by the hon. and learned Gentleman. But, said the hon. and learned Gentleman, human nature will always be the same. We have had a Jefferies on the bench—we have had a Scroggs on the bench, and will you trust Lord Denman?—will you trust Mr. Justice Patteson? True, human nature was always the same; but, at least the hon. and learned Member would concede that the circumstances under which human nature acted might be different. The hon. and learned Gentleman had destroyed his own argument. He said, that the judges so corrupt in former ages, were independent now of the Crown; but was there any difference in the House of Commons? No, the House of Commons was as powerful as ever—its independence as great—its ambition, he could answer for; and its tyranny he feared. The hon. and learned Gentleman seemed to object to lawyers entering into this debate, and certainly the hon. and learned Gentleman spoke less like a lawyer than any other Member he had listened to. Well, he differed from the hon. and learned Gentleman on a point of law, and he would cite the opinion of a Lord Chancellor in his favour. He was ready to enter upon the argument of the noble Lord, the Member for Stroud. [Oh!] How should he designate the noble Lord? He did not know what office the noble Lord filled; but the noble Lord had laid down the position, that the House of Commons were the judges of their own privileges, and that no one else could judge of those privileges but themselves. He was surprised that not in the whole course of these elaborate debates—not even in the immortal speech of the hon. and learned Attorney-general, which exceeded in length even that oration of his against treason, by which they had lately been enlightened, could he find any the opinions on this subject of a reference to a learned Lord Chancellor, than whom none had ever possessed a more perfect knowledge of the temper and tone of the House of Commons of his time—he meant Lord Clarendon. In the fourth book of his History of the Rebellion was a passage the whole of which he would not read to the House at length, though the whole of it was well deserving of the attention of hon. Members. Indeed, he considered that it was very important that the Members of that House of Commons should peruse it, but he would read a few lines. Lord Clarendon said:—
This passage, he contended, was perfectly apposite; and so was the case which the noble and learned author put by way of illustration:—"We are, say the Commons, and have been always confessed, the only judges of our own privileges; and therefore whatsoever we declare to be our privilege is such: otherwise, whosoever determines that it is not so, makes himself judge of that whereof the cognizance only belongs to us. And this sophistical riddle, "pursued Lord Clarendon," perplexed many who, notwithstanding the desperate consequence they saw must result from such logic, taking the first proposition for true, which being rightly understood, is so, have not been able to wind themselves out of the labyrinth of the conclusion. I say, the proposition rightly understood; they are the only judges of their own privileges, that is, upon the breach of those privileges which the law hath declared to be their own, and what punishment is to be inflicted upon such breach. But there can be no privilege of which the law doth not take notice, and which is not pleadable by and at law."
Lord Clarendon illustrated most luminously his position. He took the very case of the noble Lord opposite. But the hon. and learned Gentleman opposite told the House, that in this very case the argument failed, because if an hon. Member were arrested, it would be impossible, it was said, to have any redress without going before a jury, and submitting the question to their decision. From this he with the sanction of Lord Chancellor Clarendon's authority, altogether differed, because he apprehended that the Member in such case would be entitled to plead his privilege before the court, and so obviate the necessity of going before a jury. Lord Chancellor Clarendon still illustrating his position in his own person said:—"If I am arrested by process out of any court, I am to plead in the court that I am a Member of Parliament, and that by the privilege of Parliament my person ought to be free from arrest."
Why, the very consciousness of the situation in which he was placed would compel any judge to discharge the Member upon his plea of privilege. A judge would never allow the question, whether the person claiming to be a Member was or was not in fact a Member of the House of Commons, to go before a jury. The proof would be obvious without that; for the fact would be easily ascertainable from the return of the clerk of the Crown. The right hon. Baronet near him (Sir R. Peel) had last night placed this question on the ground of necessity—a ground too wide for him to go into at the moment, and he would therefore pass it by—not forgetting, however, whose plea necessity proverbially was; but he would remark, that to say that the House of Commons must have these extraordinary powers, did not prove that the law was not what the appointed and sworn guardians of the law said was law, but only proved, if admitted, the expediency of a change of the law. If the constitution of the privileges of the House was not suited to the present state of things, and the altered condition of the people, then he (Mr. D' Israeli) said, change your constitution. He asked the House of Commons why they would not explain and express the reasons why the sheriffs are imprisoned? He considered this to be a most important consideration, for the question really at issue was, would they support the writ of habeas eorpus. He said this was the real question at issue—if the House meant no more than that the sheriffs should go to what was called in a document on the table "the cell of the House of Commons." If they sent the sheriffs to that cell, then, he asked, would they be maintaining the writ of habeas corpus? That was the question for the House; that was the question with the public; that was the ground of the great agitation on this subject which prevailed out of doors. The people asked this. They could not enter into the question of law, and discriminate among the cloud of fallacies and sophisms which were put forward; but they felt that if these privileges were to stand, a man might be arrested and imprisoned, and that being so imprisoned, he could not be released by that process of law which had hitherto been deemed the safeguard of English liberty. The people, in short, felt that in that case the subject was utterly without redress. But in what situation did the House stand with respect to this business? Why, all parties agree that there ran one great blunder throughout the affair. Think of the champions of the privileges of the House of Commons—think of the men who were for sending sheriffs to cells, and committing the judges—think of them confessing that they had blundered throughout the business! Why, the hon. and learned Attorney-general never spoke of his appearance in court without tears of remorse. This was apparent through the whole of that lengthy oration with which he had lately favoured the House. But after blundering in the means, what was the result? The only result of all their proceedings was, to cause Stockdale to hire a decent coat to appear before them at the bar, and then, after a week's delay, to consign him to prison. But more; the hon. and learned Attorney-general had even succeeded in creating a feeling in the public mind in favour of Stockdale. The hon. and learned Gentleman in that had certainly done what no other person could do. This man, contemptible as he was, the hon. and learned Gentleman had made an object of some degree of public sympathy, by bringing him before the House. And what had been the hon. and learned Gentleman's conduct towards that man? He had even attempted, most unwisely, to create a prejudice against him by a reference to what he had done in other times—for what he admitted was a crime; but surely nothing could be more imprudent than to enter into such details. Then again, the hon. and learned Member for Dublin, with up-lifted arms, as though he were addressing 500,000 fighting men, had spoken in abhorrence of that printer and dispenser of obscene books. If the hon. and learned Attorney-general, and the hon. and learned Member for Dublin had been a little more conversant with the journals of the House, they would not have hazarded such a reference; they would have blinked that question. There was an instance on the journals of one who had been guilty, not of printing and publishing, but of writing obscene publications, and more obscene publications he (Mr. D'Israeli) would undertake to say, without having read them, than those put forth by Stockdale; yet that man, so stigmatized, and of a notoriously profligate career, even subsequently to having been convicted before a jury of his countrymen of having been the author of an infamous and obscene libel, he, thus stigmatized, was, nevertheless, returned to that House as Member for the Metropolitan county; and that individual in a contest with the House of Commons not only beat the House, but himself forced them to erase from their journals the very resolution by which they had expelled him. So much for the votes and resolutions of the House of Commons. Yet, if they erased the resolution which they had passed in this case, the hon. and learned Attorney-general said that they would stultify themselves. He wished that the hon. and learned Gentleman had been on the opposition side of the House when the appropriation question was disposed of. The hon. and learned Gentleman, he believed, had voted for what amounted to rescinding that resolution, had he not? But the hon. and learned Gentleman said, that the case was become one of a point of honour now, and that alone prevented him, he said, from retracing his steps. Now, he was glad to find that a certain degree of feeling remained in the House yet. He was also glad to see that no one could say that this was a party question; no one at least could say that it was a party question as far as he was concerned. Speaking where he did, in opposition to the right hon. Baronet below him, it was impossible to say that he had adopted this course but because he knew what the House of Commons had done, and he saw nothing in the present House of Commons to make him doubt what they would do. It was no argument to refer to the near balance of parties; the House of Commons was as nearly balanced when Clarendon, then Mr. Hyde, sat there. The Remonstrance, which was the test of party in those days, was carried by a majority of nine and no more, and that, as Clarendon adds, because some of the Cavaliers were absent. Let that be a lesson to some hon. Members in these days. Parties were equally balanced now. He was not one of those who, when reading of the terrific instanced of the exercise of parliamentary power and parliamentary privilege, could be divested of his fears, by being told that these were records of a distant and comparatively barbarous age. He could not find in the present House any quality which could make him for a moment suppose it superior to that age which produced Hampden, Cromwell, Pym, both the Vanes, St. John, and Selden; nor could he discover any ground for believing, that in wisdom or eloquence the Parliament of 1640 was inferior to that of 1840. But he believed that there was much more similarity between them—in the grasping and ambitious spirit by which they were actuated. He, therefore, should resist their assumption of a privilege beyond all law. He had no wish to see a revival of the times of extravagant privilege, and as far as his weak voice could prevail, he should prevent it. He had no wish to have his property sequestrated or his person tortured, or to see a bold usurper walking up to the table of the House, and ordering them to "take away that bauble.""Upon this plea, the judge is bound to discharge me, and if he does not, he is a criminal."
said, he would not detain the House long at that late period of the evening, and after so many speeches had been made on both sides, when in fact the whole battalion of argument pro and con had been brought forward to the greatest advantage, it would ill become him to touch on any of the points which other Gentlemen had so ably treated; but he could not help taking the opportunity of expressing his own sentiments, and, though far from being inclined—
" Iterum antiquo me includere ludo;
he was unwilling to give a silent vote on this important proceeding. It did appear to him, if arguments in favour of privilege were allowed to have a preponderance, that the safety and liberty of the people—of every individual in the kingdom—would be entirely at the mercy of the House of Commons. He could not understand the kind of modesty with which the House, having been a party to the making of laws, could pretend not to be bound by them, and could reject as of no force (against their resolution) the acts of the three estates of the realm. If this doctrine were admitted, and if a simple resolution of the House of Commons, and that, too, of an ex post facto nature, could have such an effect, it would amount to a subversion of all principles of justice, and of constitutional law. He appealed from the House on this subject to the public, for it was a matter of public importance, and he was not afraid to say that the liberties of the country were at stake. The House seemed determined, with more than the sic volo, sic jubeo, stet pro ratione voluntas of a tyrant, to exercise a power of declaring an act to be a crime after it had been committed. This was the House of Commons; the reformed House of Commons; the House of Commons on which the people had peculiar claims, and from which they had peculiar grounds for expecting an indiscriminate and impartial administration of justice against all particular privileges or private rights, contrary to the public interests. If such conduct was to be suffered from them, the people of England were in a worse situation under the Reformed Parliament, than they ever were before, even when the House was composed in the objectionable manner in which it was formerly. When Duncan is murdered under the roof of Macbeth, the murderer exclaims—Speetatum satis, et donatum jam rude,"
"He's here in double trust;
First, as I am his kinsman and his subject,
Strong both against the deed: then as his host,
Who should against his murderer shut the door,
The House might say the same in their present attempt at violating the rights of the English people, which it was their duty—almost their sole duty—at all events, their paramount duty—to maintain. He had himself combatted formerly the exercise of the power which, under pretence of privilege, was attempted to be exercised, and he thought he had shown that the House was wrong, and had not the least foundation to stand upon. He had resisted the Speaker's warrant, declared it to be no warrant, and stood siege in his house rather than submit to it. His sole reason for that was to show to the country the illegality of the power of imprisoning Englishmen, exercised by the House because they had no legal instruments with which to enforce the order which they had issued. The privilege of Parliament was not different from any other. It was not necessary to go very far back to see how it arose. It was incidental to the peculiar situation of that House. In the time of the civil wars the House was compelled to make a bold assertion of privilege, and to wage war upon the prerogative; but after that time the humble claim of Parliament was, that Members might be enabled to do their duty to the public with security to their persons and property. One of the chief things condemned in the exercise of the prerogative before the civil war of 1641 was imprisoning men without assigning any cause, and the Parliament struggled to obtain the recognition of that right of Englishmen which, from time immemorial had existed, of not being imprisoned without having cause shown. This was the obnoxious power which the House now attempted to exercise. They attempted this in violation of the law, at a time when the law had not that universal respect which it ought to have. He remembered a time when such was the reverence for the law that a constable going amongst a crowd of people with his staff could at once disperse them. He had often seen such assemblages, which two or three constables were sufficient to disperse. The high claims to privilege were supported, no doubt, from most patriotic motives. But patriotism was of a different kind from what was formerly called so. There was a time when patriotism did not mean exciting the passions and feelings of the people against all the lawful authorities of the country. What did they now see,—in Ireland, England, or indeed in any part of the Queen's dominions? They found men, while they talked of peace, exciting in the people the most hostile passions against the lawful authorities and government of the country. Precursor, Liberator, Emancipator, whatever name they might bear, they were always remarkable for a close adherence to the good old rule, "put money in thy purse." A great deal had been said about the preparation of, he knew not how many, fighting men for the combat. He only hoped that he might live till the day they were brought into the field. But he asked again, what was all this about? It was intended that privilege should be a shield to the Members of that House, and not a sword to be used against the people. If this power, now claimed by the House, was considered essentially necessary, why not let it be recognized and established by an act of Parliament, instead of compelling men to submit to a resolution of the House of Commons which had not the validity of the law of the land? And supposing the privilege to be recognised by the law, where was the indignity in having the privileges and power of a corporate body declared by law; and, like these, of the King himself, if disputed, brought for trial before the highest court of judicature? The House could not remain in its present position. It could not advance in the course it was pursuing, nor retreat in any underhand manner consistently with its dignity. The Attorney General's exhortation to boldness reminded him of some of the French revolutionary leaders, Danton or Robespierre, whose motto was "l'audace." Who ever heard of an Attorney General taking such a motto. At all events, boldness in opposition to the highest authorities of the law was peculiarly unsuitable at the present time when the safety of England was at stake, notwithstanding the learned Attorney General's boast at Edinburgh, that the wisdom of ministers had brought about the tranquillity of the country. The wisdom of Ministers had indeed produced a state of tranquillity and content something like that of the time when there were mighty fires in Kent and other parts of the country, during the administration of the Duke of Wellington; and which was the standing Whig argument to show the incapacity of his Government. This was, he thought, a time on which the House ought to show a proper reverence for the law, and not to be entering upon contests with the Court of Queen's Bench. It was for them, beyond all others, to set a salutary example to the people. As to those privileges of Parliament, of which he had heard so much, he did not think that they could be in a worse position; and what they ought to do was to take proper and legal measures for putting them on a right foundation. In the course, however, in which they were proceeding, they would soon find themselves surrounded by nothing but difficulties and disappointments. They were like persons going, as he believed, to the northern coasts of America, and who, when they thought they were nearing a point of land, found, as they believed they approached to it, that it was going still farther away from them. The place was, he thought, called "Point-no-Point." Such was the position of ministers; they were at Point-no-Point, and the further they seemed to advance the further were they receding from that point to which the people of England wished and intended them to be. Upon this question of privilege, they had the opinion of Cicero, who said of privilegium, that which he should now mention, "Nihil quod hæc civitas minus ferre possit"—nothing could be more pernicious, nothing more usurping, nothing more unfounded, nothing more pernicious to the party exercising it, and to the party suffering under it. Now, what were they doing here in vindicating their privileges?—punishing men who were bound to act in their ministerial capacity! That might be justice according to the Irish ideas of justice; but this he was sure of, that it was not English justice—that would be administered fairly and impartially to every man who sought for it, whatever might be his character. Here, in this case, the man that sought for justice might be the greatest vagabond that ever existed; here, he might be the most unaccountable vagabond that ever existed on the face of the earth, and yet, he said, what had they to do with that? The man called for the exercise of the law, and the less he was worthy of it, the more was it to the honour of the country which fairly administered it. The man appealed to the law. The Attorney-general also appealed to it. Why, the Attorney-general, in doing so, was a particeps criminis. The Attorney-general had appealed to the law, and there was an end to their dignity. But then the Attorney-general having done so, and then finding that the judges would not tell the clock exactly to his time, he afterwards withdrew his plea. But what did they do now? They did not venture to grapple with the Chief Justice—they did not venture to grapple with a man who might meet them, as Lord Holt had met them. It would be more becoming to their dignity and courage, than to assail those whom they had attacked. They ought to do this, and not let escape game that was too high, perhaps, for their wing to fly at; but by whom it would not be disgraceful nor degrading to them to be defeated. Here, after an action had been brought and not defended, but voluntarily abandoned, and that a jury had found a verdict and assessed damages, then came the Attorney-general to propose that the damages which had been awarded to Mr. Stockdale should be given to another party. How could the sheriff do that? It was not pretended that it could be done, and he therefore begged leave to take that opportunity to protest against their proceeding, and to declare that they were laying down a principle which could not be maintained. If the House of Commons did this, it would call down the public odium to a degree that they did not suspect: but whether they did or not, they would at least stand in the undignified situation of men who wished to do an injustice, and yet who dared not and could not maintain it. He called upon them, by acting properly, justly, and impartially, to sustain that character and uphold that position which they ought to maintain before the country.Not bear the knife myself."
; To take a phrase from the hon. Baronet who has just sat down, I ask, "What is all this about?" It certainly is about, and about, and about everything, and seems very little to touch upon that which is the matter in dispute. As to his parenthetic allusion to myself, it has as much to do with the question as any other of the many ramblings of the erratic Baronet. I had once the infliction of his praise—I hope that never will occur again. Amongst all his wanderings I trust he will save me from that punishment, and I forgive him everything else. I now allude to him because on this point he has directly contradicted himself—if that could or can be an awkward predicament for him. Here he has found fault with the Attorney-general for what he has done; and now let me call your attention to certain resolutions passed on the 1st August, 1839. Permit me to read them for you:
That is Polack's case. Now, who was it that supported that resolution? I heard the hon. Baronet support it standing at that end of the House. There, then, is the tyranny which he has denounced! There the oppressions of the people of England, which he has decried—the threatening men who are going to courts of justice for the vindication of their wrongs. The hon. Baronet supported it all—all—and yet here he is, alive and merry, to contradict it. Let it not be supposed that I misrepresent him. He made on that occasion a short speech—a very unusual thing, I own, with him. But then it was not only a short speech, but I admit also that it was almost the only occasion on which he has made a very rational speech, and one that applied to the point. It begins thus:—"Sir Francis Burdett"—he changed his name once—in that I think he was right. He has changed his nature more than once—and in that I think he was wrong. He said this:"That Messrs. Hansard, in printing and publishing the report and the minutes of evidence on the present state of the Island of New Zealand, communicated by the House of Lords to this honourable House on the 7th August, 1838, acted under the orders of this House; and that to bring, or to assent in bringing any action against them for such publication, is a breach of the privileges of this House."
What! are you surprised at so little inconsistency as that? He continues:"Sir F. Burdett could not help feeling the extreme difficulty of the case, but agreed with the noble Lord, that the House ought to possess whatever power was necessary for the proper performance of its functions. The privileges of this House were not intended to be used as powers against other persons."
I now, then, make my bow to the hon. Baronet until his next "wheel about.""But to shield the House against the exorbitant privileges of the Crown, which might be exercised so as to stop free discussion, and the free agitation of Parliament, the House, however, claimed privileges now which were not beneficial to the public. It could never have been in contemplation, that Members should be protected against arrest for private debt. But the object of Parliament had altered with the change in the state of the country. It used to be a regulation, that no proceedings in the House be reported out of it. This, among other things, had yielded to the alteration in the state of society. There was this difficulty in the way of the House, that when it once interfered, there was no means of knowing when it should stop. He considered the House should have all those powers which were necessary for the welfare of the public; and he should not, therefore, oppose the resolutions [cheers from the ministerial benches], which he thought rational and consistent with the proper respect for the liberty of the subject."
I beg to say, that I am not to be bound by the report, and besides the words, without the circumstances, are nothing at all; but, then, I see nothing inconsistent in it.
The House divided on Mr. Kelly's motion: Ayes, 99; Noes, 210: Majority, 111.
List of the AYES.
|Acland, Sir T. D.||Jackson, Serjeant|
|Acland, T. D.||Jones, J.|
|A'Court, Captain||Jones, Captain|
|Alsager, Capt.||Kemble, H.|
|Arbuthnott, H.||Knatchbull, Sir E.|
|Archdall, M.||Knightly, Sir C.|
|Ashley, Lord||Law, hon. C. E.|
|Attwood, W.||Lefroy, T.|
|Attwood, M.||Liddell, hon. H. T.|
|Bagge, W.||Litton, E.|
|Baring, hon. F.||Lowther, J. H.|
|Bateson, Sir R.||Lygon, hon. General|
|Bentinck, Lord G.||Mackenzie, T.|
|Blackstone, W. S.||Maclean, D.|
|Blandford, Marq.||Mahon, Lord|
|Broadley, H.||Marton, G.|
|Bruce, Lord E.||Maxwell, hon. S. R.|
|Bruges, W. H.||Nicholl, J.|
|Christopher, R.||Packe, C. W.|
|Cole, Lord||Palmer, R.|
|Conolly, E.||Palmer, G.|
|Curry, hon. H.||Pattison, J.|
|Cresswell, C.||Pemberton, T.|
|Darby, G.||Perceval, hon. G.|
|Dick, Q.||Plumptre, J. P.|
|D'Israeli, B.||Polhill, F.|
|Duke, Sir J.||Praed, W. T.|
|Duncombe, T.||Pringle, A.|
|Egerton, Sir P.||Richards, R.|
|Eliot, Lord||Round, J.|
|Fielden, W.||Rushbrooke, Col.|
|Fector, J. M.||Rushout, G.|
|Filmer, Sir E.||Scarlett, hon. J. Y.|
|Fitzroy, hon. H.||Sibthorp, Colonel|
|Forester, hon. G.||Smyth, Sir G. H.|
|Freshfield, J. W.||Somerset, Lord G.|
|Gladstone, W. E.||Stormont, Lord|
|Glynne, Sir S. R.||Sugden, Sir E.|
|Gordon, Captain||Talfourd, Sergeant|
|Goring, H. D.||Tennent, J. E.|
|Greene, T.||Thompson, Alderman|
|Grimsditch, T.||Vere, Sir C. B.|
|Grimston, Lord||Verner, Colonel|
|Halford, H.||Vivian, J. E.|
|Hamilton, Lord C.||Walsh, Sir J.|
|Herries, J. C.||Williams, R.|
|Hogg, J. W.||Wood, Sir M.|
|Hope, H. T.||Wood, Colonel T.|
|Hope, G. W.|
|Ingham, R.||Kelly, J.|
|Inglis, Sir R. H.||Godson, R.|
List of the NOES.
|Abercromby, hon, G. R.||Adam, Admiral|
|Aglionby, H. A.||Fremantle, Sir T.|
|Archbold, R.||French, F.|
|Bainbridge, E. T.||Gillon, W. D.|
|Baines, E.||Gisborne, T.|
|Baring, F. T.||Gordon, R.|
|Barnard, E. G.||Gore, O. J. R.|
|Barron, H. W.||Goulburn, H.|
|Barry, G. S.||Graham, Sir J.|
|Beamish, F. B.||Grattan, H.|
|Berkeley, hon. H.||Gregg, R. H.|
|Bernal, R.||Greig, D.|
|Bewes, T.||Grey, Sir C.|
|Blair, J.||Grey, Sir G.|
|Blake, M. J.||Harcourt, G.|
|Blake, W.J.||Hardinge, Sir H.|
|Blennerhassett, A.||Hastie, A.|
|Blewitt, R. J.||Hawes, B.|
|Bodkin, J. J.||Hawkes, T.|
|Bolling, W.||Hawkins, J. H.|
|Bowes, J.||Hayter, W. G.|
|Bridgeman, H.||Heathcoat, J.|
|Briscoe, J. I.||Hector, C. J.|
|Broadwood, H.||Hepburn, Sir T.|
|Brocklehurst, J.||Hill, Lord A. M. C.|
|Brodie, W. B.||Hindley, C.|
|Brotherton, J.||Hobhouse, Sir J.|
|Browne, R. D.||Hobhouse, T. B.|
|Busfeild, W.||Hodges, T. L.|
|Callaghan, D.||Hodgson, R.|
|Campbell, Sir J.||Holland, R.|
|Cavendish, hon. G. H.||Hope, hon. C.|
|Chetwynd, Major||Horsman, E.|
|Chichester, J. P. B.||Howard, F.|
|Childers, J. W.||Howard, P.|
|Clay, W.||Howick, Lord|
|Clements, Lord Vise.||Hughes, W. B.|
|Clerk, Sir G.||Hume, J.|
|Clive, E. B.||Hutton, R.|
|Collier, J.||James, W.|
|Collins, W.||Jenkins, Sir R.|
|Coote, Sir C. H.||Jervis, J.|
|Courtenay, P.||Labouchere, H.|
|Cowper, hon. W. F.||Lemon, Sir C.|
|Craig, W. G.||Lister, E. C.|
|Crompton, Sir S.||Loch, J.|
|Currie, R.||Lockhart, A. M.|
|Curry, Serjeant||Lushington, S.|
|Dalmeny, Lord||Mackenzie, W.|
|Donkin, Sir R. S.||Macnamara, Major|
|Duff, J.||Marshall, W.|
|Dunbar, G.||Melgund, Lord|
|Dundas, C. W. D.||Morpeth, Lord|
|Dundas, F.||Morris, D.|
|Dundas, hon. J. C.||Murray, A.|
|Dundas, Sir R.||Muskett, G. A.|
|Easthope, J.||Nagle, Sir R.|
|Elliot, hon. J. E.||Norreys, Sir D.|
|Ellice, E.||O'Brien, C.|
|Ellis, J.||O'Brien, W. S.|
|Ellis, W.||O'Callaghan, C.|
|Erie, W.||O'Connell, D.|
|Evans, G.||O'Connell, J.|
|Ewart, W.||O'Connell, M. J.|
|Ferguson, Sir R.||O'Connell, M.|
|Fitzsimon, N.||Ord, W.|
|Fleetwood, Sir P.||Oswald, J.|
|Fort, J.||Palmerston, Lord Vis.|
|Parker, J.||Steuart, R.|
|Parker, R. T.||Stuart, W. V.|
|Pease, J.||Stock, Dr.|
|Pechell, Captain||Strickland, Sir G.|
|Peel, rt. hon. Sir R.||Strutt, R.|
|Pendarves, E. W.||Surrey, Earl of|
|Philips, Sir R.||Tancred, H. W.|
|Pigot, D. R.||Teignmouth, Lord|
|Planta, rt. hon. J.||Thornely, T.|
|Ponsonby, C. F. A.||Tollemache, F. J.|
|Price, Sir R.||Troubridge, Sir E.|
|Pryme, G.||Turner, W.|
|Rae, rt. hon. Sir W.||Turner, E.|
|Redington, T. N.||Vigors, N. A.|
|Reid, Sir J. R.||Villiers, hon. C. P.|
|Rice, E. R.||Waddington, H.|
|Rich, H.||Wakley, T.|
|Roche, W.||Walker, R.|
|Rundle, J.||Wall, C. B.|
|Russell, Lord J.||Wallace, R.|
|Rutherfurd, A.||Warburton, H.|
|Salwey, Colonel||Ward, H. G.|
|Sandon, Lord||Westenra, hon. H.|
|Sanford, E. A.||White, A.|
|Scholefield, J.||Williams, W.|
|Scrope, G. P.||Wilshere, W.|
|Seale, Sir J.||Winnington, T. E.|
|Seymour, Lord||Winnington, H. J.|
|Sheil, R. L.||Wood, C.|
|Sinclair, Sir G.||Wood, G. W.|
|Smith, B||Worsley, Lord|
|Smith, G. R.||Wrightson, W. B.|
|Smith, R. V.||Wyse, T.|
|Somers, J. P.||Yates, J. A.|
|Speirs, A.||Young, J.|
|Stanley, hon. W.|
|Stansfield, W. R. C.||Maule, hon. F.|
|Staunton, Sir G.||Stanley, E. J.|
moved that the sheriffs, having been guilty of a breach of the privileges of the House, should be committed to the custody of the Sergeant at Arms, and that the Speaker do issue his warrant accordingly.
feared that the result of the decision of that House would be one of serious consequence, whether they triumphed, or whether they failed. He would not discuss the question of privileges, as there were others far more competent to that task; but he would venture to say this, that whatever might be the result of their privileges, their character would be materially injured if they proceeded to enact what he must describe as a most fatal injustice. They were about to commit to prison men deservedly popular among their fellow citizens; men who held their office by election from the people; and that, too, when it had been admitted by everybody that their conduct had been most honourable, and that they had shown no disposition to act contemptuously by that House. It should be also recollected, that, in the former action brought by Stockdale, that House had sanctioned the payment of damages to Stockdale; and having thus actually paid damages under the former action, would they not be acting with the most flagrant injustice if, with this example before the sheriffs, they ventured to commit those two gentlemen to prison? He was sure, if they acted thus, they would damage themselves in the eyes of the country—they would be advancing pretensions injurious to the liberty of the subject; and whatever opinion he might entertain of the privileges of the House, he had seen enough in what had taken place on the floor of that House to convince him that their powers were arbitrarily possessed, and would be arbitrarily exercised. When a witness refused to answer a question criminatory of himself, and when he appealed to that House whether they would compel him to answer the question, he was told that that House was not to be bound by the technicalities of courts of law. Technicalities ! why, they were the rules without which no individual would be safe—the rules which were the best protection of public liberty. He hoped the House would pause before proceeding further in such a course; and he, at all events, would offer his most decided opposition to the resolution moved by the noble Lord.
begged for a moment to draw the attention of hon. Members to the personal conduct of the two gentlemen implicated in their present proceeding. On Saturday night the right hon. Baronet, the Member for Tamworth, stated that the conduct of the sheriffs had been most honourable, and all the Gentlemen on the other side of the House, whether calling themselves Reformers, Whigs, Radicals, or Chartists, concurred in the opinion of the right hon. Baronet. It was admitted on all hands that the conduct of the sheriffs up to that moment had been most honourable, and that they had interposed every species of delay before paying the money, in order that that House might have an opportunity of considering the subject, and taking such steps as it should think proper. Were men, who had thus acted, to be subject to, what he must call, an unlimited punishment? The session might last until next September, and yet it was proposed, perhaps, for the whole of this terra to impri- son these men, whose conduct had been admitted to be most honourable, just, and proper. But another question might arise. Suppose the rule should not be made absolute by the Court of Queen's Bench; then, of course, the money being in the hands of the sheriffs, might be repaid to the Messrs. Hansard. Ought not the sheriffs to have, at least, this opportunity before they were punished by the House, for the purpose of setting themselves right? But supposing the rule should be made absolute, and the sheriffs were ordered to pay the money to Stockdale, and refused to do so until an attachment sued, then a writ must be directed to the hon. Member for Finsbury, as coroner of the county, to take the sheriffs into custody. But to proceed farther, suppose the hon. Member for Finsbury, (Mr. Wakley), supporting the opinions which he had professed in that House, refused to attach the sheriffs, then the Court of Queen's Bench might direct a writ to take the hon. Gentleman, the coroner for the county, into custody; and if so, as might be the case, the question of privilege would come to be contested in the person of one of their own Members. Then would come the real struggle when the hon. Member for Finsbury complained of being taken into custody, and the sergeant-at-arms was sent to relieve him. This might be one of the consequences of their proceeding in the manner in which they were proceeding. He warned them to pause at the last moment; and in order to give them another opportunity of more calmly considering the question, he moved that the debate be adjourned till that day week.
hoped, that his hon. and and learned Friend would not press this amendment. There must be some time when the minority must bow to the decision of the majority. He hoped, therefore, his hon. and learned Friend would enable the House to come to a decision upon the main question at once.
would not press his amendment.
The House divided:—Ayes 195; Noes 94: Majority 101.
List of the AYES.
|Abercromby, G.||Archbold, R.|
|Acheson, Lord||Baines, E.|
|Adam, Admiral||Baring, F. T.|
|Aglionby, H. A.||Barnard, E.G.|
|Barry, G. S.||Hardinge, Sir H.|
|Beamish, F. B.||Hastie, A.|
|Berkeley, hon. H.||Hawes, B.|
|Bernal, It.||Hawkes, T.|
|Bewes, T.||Hawkins, J. H.|
|Blair, J.||Hayter, W. G.|
|Blake, M. J.||Heathcoat, J.|
|Blake, W. J.||Hector, C. J.|
|Blennerhassett, A.||Hepburn, Sir T.|
|Blewitt, R. J.||Hill, Lord A. M. C.|
|Bodkin, J. J.||Hindley, C.|
|Bowes, J.||Hobhouse, Sir J.|
|Bridgeman, H.||Hobhouse, T. B.|
|Broadwood, H.||Hodges, T. L.|
|Brocklehurst, J.||Hodgson, R.|
|Brodie, W. B.||Hollond, R.|
|Browne, R. D.||Hope, hon. C.|
|Busfield, W.||Horsman, E.|
|Callaghan, D.||Howard, F. J.|
|Campbell, Sir J.||Howard, P. H.|
|Cavendish, hon. G.||Howick, Viscount|
|Chetwynd, Major||Hughes, W. B.|
|Chichester, J. P. B.||Hume, J.|
|Childers, J. W.||Hutton, R.|
|Clay, W.||James, W.|
|Clements, Lord||Jenkins, Sir R.|
|Clerk, Sir G.||Jervis, J.|
|Clive, E. B.||Labouchere, H.|
|Collier, J.||Lemon, Sir C.|
|Collins, W.||Lister, E. C.|
|Courtenay, P.||Loch, J.|
|Cowper, hon. W.||Lockhart, A. M.|
|Craig, W. G.||Lushington rt. hon. S.|
|Crompton, Sir S.||Mackenzie, W. F.|
|Currie, R.||Macnamara, Major|
|Curry, Sergeant||Marshall, W.|
|Dalmeny, Lord||Melgund, Visct.|
|Donkin, Sir R.||Morpeth, Visct.|
|Duff, J.||Morris, D.|
|Dundas, C. W. D.||Murray, A.|
|Dundas, F.||Muskett, G.|
|Dundas, hon. J. C.||Nagle, Sir R.|
|Dundas, Sir R.||Norreys, Sir D. J.|
|Easthope, J.||O'Brien, C.|
|Elliot, hon. J. E.||O'Brien, W. S.|
|Ellice, E.||O'Callaghan, hon. C.|
|Ellis, J.||O'Connell, D.|
|Ellis, W.||O'Connell, M.|
|Erie, W.||O'Connell, M. J.|
|Ewart, W.||O'Connell, J.|
|Ferguson, Sir R.||Ord, W.|
|Finch, F.||Oswald, J.|
|Fitzsimon, N.||Palmerston, Visct|
|Fleetwood, Sir P.||Parker, J.|
|Fremantle, Sir T.||Parker, R. T.|
|French, F.||Pease, J.|
|Gillon, W.D.||Pechell, Capt.|
|Gisborne, T.||Peel, rt. hon. Sir. R.|
|Gordon, R.||Pendarves, E. W. W.|
|Gore, O. J. R.||Pigot, D. R.|
|Goulburn, H.||Planta, rt. hon. J.|
|Graham, Sir J.||Ponsonby, C. F.|
|Grattan, H.||Price, Sir R.|
|Greg, R. H.||Pryme, G.|
|Greig, D.||Rae, rt. hon. Sir W.|
|Grey, Sir C.||Redington, T. N.|
|Grey, Sir G.||Rice, E. R.|
|Rich, H.||Thorneley, T.|
|Roche, W.||Tollemache, F. J.|
|Rundle, J.||Troubridge, Sir E. T.|
|Russell, Lord J.||Turner, E.|
|Rutherfurd, rt. hn. A.||Turner, W.|
|Salwey, Colonel||Vigors, N. A.|
|Sandon, Lord||Villiers, hon. C.|
|Sanford, E. A.||Waddington, H.|
|Scholefield, J.||Wakley, T.|
|Scrope, G. P.||Walker, R.|
|Seale, Sir J. H.||Wallace, R.|
|Seymour, Lord||Warburton, H.|
|Sheil, rt. hn. R. L.||Ward, H. G.|
|Smith, B.||Westenra, H. R.|
|Smith, R. V.||White, A.|
|Speirs, A.||Williams, W.|
|Stanley, Lord||Wilshere, W.|
|Stanley, W. O.||Winnington, T. E.|
|Stansfield, W. R.||Winnington, H. J.|
|Staunton, Sir G.||Wood, G. W.|
|Steuart, R.||Worsley, Lord|
|Stuart, W. V.||Wrightson, W.|
|Stock, Dr.||Wyse, T.|
|Strickland, Sir G.||Yates, J. A.|
|Strutt, E.||Young, J.|
|Talbot, J. H.|
|Tancred, H. W.||Maule, F.|
|Teignmouth, Lord||Stanley, E. J.|
List of the NOES.
|Acland, Sir T. D.||Goring, H. D.|
|Acland, T. D.||Greene, T.|
|A'Court, Captain||Grimsditch, T.|
|Alsager, Captain||Grimston, Lord|
|Arbuthnott, H.||Hadford, H.|
|Archdall, M.||Hamilton, Lord C.|
|Ashley, Lord||Herries, J. C.|
|Attwood, W.||Hogg, J. W.|
|Attwood, M.||Hope, H. T.|
|Bagge, W.||Hope, G. W.|
|Bateson, Sir R.||Ingham, R.|
|Bentinck, Lord G.||Inglis, Sir R. H.|
|Blackstone, W. S.||Jackson, Sergeant|
|Blandford, Marquis||Jones, J.|
|Broadley, H.||Kelly, F.|
|Bruce, Lord E.||Kemble, H.|
|Bruges, W. H.||Knatchbull, Sir E.|
|Christopher, R.||Knightley, Sir C.|
|Cole, Lord||Law, hon. C. E.|
|Conolly, E.||Lefroy, T.|
|Corry, hon. H.||Liddell, hon. H.|
|Cresswell, C.||Litton, E.|
|Darby, G.||Lowther, J. H.|
|D'Israeli, B.||Lygon, hon. General|
|Duke, Sir J.||Mackenzie, T.|
|Duncombe, T.||Maclean, D.|
|Egerton, Sir P.||Mahon, Lord|
|Eliot, Lord||Maxwell, hon. S.|
|Fector, J. M.||Packe, C. W.|
|Filmer, Sir E.||Palmer, R.|
|Fitzroy, hon. H.||Palmer, G.|
|Forester, hon. G.||Pattison, J.|
|Gladstone, W. E.||Pemberton, T.|
|Glynne, Sir S. R.||Perceval, hon. G.|
|Gordon, Captain||Plumptre, J. P.|
|Polhill, F.||Talfourd, Sergeant|
|Praed, W. T.||Tennent, J. E.|
|Pringle, A.||Thompson, Alderman|
|Richards, R.||Verner, Colonel|
|Round, J.||Vivian, J. E.|
|Rushbrooke, Col.||Walsh, Sir J.|
|Rushout, G.||Williams, R.|
|Scarlett, hon. J. Y.||Wood, Sir M.|
|Sibthorpe, Colonel||Wood, Colonel T.|
|Smyth, Sir G. H.|
|Style, Sir C.||Godson, R.|
|Sugden, Sir E.||Freshfield, J. W.|
The sheriffs were taken into custody.
would then move, that the order with respect to the under-sheriffs be discharged.
Order discharged. The noble Lord moved that Thomas Burton Howard, the attorney of Stockdale in the case, be called to the bar.
called to the bar.
What is your name?—Thomas Burton Howard.
What is your profession?—I am an attorney.
Were you concerned in the action of Stockdale v. Hansard?
objected to the question.
would certainly object to a course of examination involving the witness, with a view to his committal, though that course had been pursued with respect to other persons. If the House wished to put on the semblance of justice, they would not proceed with this examination at so unreasonable an hour. Hon. Members had been sitting in that House till half-past three this morning, upon a most harassing inquiry, and he contended it was most improper to enter upon any thing approaching to an adjudication of the case at that time.
asked what was the object of calling this gentleman before the House at all? They had imprisoned the plaintiff, and Mr. Howard was only the attorney. They had not ventured to call the counsel before them, who had been as much guilty of a breach of the privileges of this House as the attorney. He objected altogether to punishing the attorney. As regarded the counsel, he repeated they had not called them to the bar, and he knew they would not dare to call them. Why did they not call Mr. Burchell? Because that Gentleman acted in a judicial capacity, however humble.
called the right hon. and learned Gentleman to order. The question they were discussing was whether a certain question should be put.
contended, that his observation was relevant, because the person who had been called should be examined. Though he had persuaded his hon. Friend (Mr. Godson) to withdraw his amendment just now, on another question, yet if that course were to be persisted in, he would support motions for adjournment all night. Was not the vengeance of the House satisfied?
rose to order. Though during the discussion of this question there had been many imputations thrown out against the House, and more especially against those who had taken a leading part in these proceedings, he had thought it more consistent with the freedom of debate to allow them to pass unnoticed; but after the House had come to a deliberate decision, he thought it disrespectful to make use of such an expression as that which had just fallen from the right hon. and learned Gentleman in asking—was not the vengeance of the House satisfied?
would tell the House very plainly that proceedings like the present were very apt to lead a man into warmer expressions that he would otherwise use. He felt indignant at the course of proceeding adopted by the noble Lord with respect to the person who has been brought to the bar. He did not think it worthy of the House to pursue the attorney in this cause. They had already committed the plaintiff and the two sheriffs—was not that enough to satisfy their privileges? The vindication of their privileges was denied by the unanimous judgment of the Court of Queen's Bench, and by other eminent judges; it was denied by the first lawyers of Westminster-hall, and it was denied by common sense. He thought the consideration of that fact should induce the House to pause in the extreme course of punishment which the noble Lord seemed to desire. He thought every thing had been done that was necessary, and having confined the plaintiff it would be unworthy in the House to confine the attorney. When the proper time came he would make a motion that Mr. Howard be discharged.
begged to remind the House, that when the case of Baron Smith was before the House, one of the charges against him was, that he had put a prisoner on his trial after twelve o'clock at night.
, knowing that it was in the power of a minority, however small, to prevent the House from proceeding with any business by persisting in moving the motion of adjournment, would not enter into a contest with the hon. Gentleman opposite upon that point on the present occasion. If the examination of Mr. Howard were objected to at that hour of the night, he should make no objection to defer his examination till to-morrow. He begged to move, therefore, that the question now before the House be withdrawn, and also to move "that Mr. Howard do attend to-morrow."
Original question withdrawn, and the new motion put.
moved as an amendment that the House do now adjourn.
observed that the hon. and learned Member's amendment would be useless for the purpose for which it was intended; because if he should succeed in carrying the adjournment of the House upon the present occasion, and thereby defeat the motion that Mr. Howard should be called to the bar to-morrow, it would still be competent to him to move that that gentleman be brought to the bar and examined at any time that he pleased.
, as long as the noble Lord persevered in selecting, as he thought, on principles of arbitrary caprice, the different individuals upon whom the vengeance of the House was to be directed—[cries of "order"].
was sure that the hon. and learned Member would see that he was using expressions which were not parliamentary.
bowed at once to the decision of the Chair; but he could not allow a question to be put, as to whether more of her Majesty's subjects should be called to the bar for the purpose of examination and punishment for actions which he deemed perfectly lawful, without opposing it to the utmost of his power. After what the noble Lord had stated, he would not now divide the House upon the question of adjournment; but if the noble Lord, either to-morrow or upon any other occasion, should attempt to bring to the bar any other individuals for examination or punishment, he should certainly take the sense of the House as to whether this system of persecution should continue.
The question that Mr. Howard do attend at the bar to-morrow was then again put.
moved that the House do now adjourn.
The House divided on the question, that it do adjourn.—Ayes 39; Noes 113: Majority 74.
List of the AYES.
|Acland, T. D.||Litton, E.|
|A'Court, Captain||Mackenzie, T.|
|Archdall, M.||Mac Lean, D.|
|Attwood, W.||Maxwell, hon. S. R.|
|Attwood, M.||Nicholl, J.|
|Bagge, W.||Packe, C. W.|
|Bateson, Sir R.||Pemberton, T.|
|Bruges, W. H. L.||Plumptre, J. P.|
|Christopher, R.||Praed, W. T.|
|Cole, Viscount||Pringle, A.|
|Darby, G.||Richards, R.|
|Duncombe, T.||Rushbrooke, Colonel|
|Egerton, Sir P.||Sibthorp, Colonel|
|Eliot, Lord||Stormont, Lord|
|Filmer, Sir E.||Sugden, rt. hon. Sir E.|
|Fitzroy, hon. H.||Thompson, Ald.|
|Gladstone, W. E.||Verner, Colonel|
|Glynne, Sir S. R.||Vivian, J. E.|
|Hamilton, Lord C.|
|Inglis, Sir R. H.|
|Knatchbull, rt. hon. Sir E.||Law, hon. C. E.|
List of the NOES.
|Aglionby, H. A.||Ellis, J.|
|Archbold, R.||Ellis, W.|
|Baines, E.||Fergusson, Sir R. A.|
|Baring, F. T.||Fitzsimon, N.|
|Beamish, F. B.||Fleetwood, Sir P.|
|Bernal, H.||Forrester, hon. G.|
|Blake, M. J.||Freemantle, Sir T.|
|Blake, W. J.||French, F.|
|Blewitt, R. J.||Freshfield, J. W.|
|Bowes, J.||Gisborne, T.|
|Broadwood, H.||Gordon, A.|
|Brotherton, J.||Graham, Sir J.|
|Busfield, W.||Greene, T.|
|Callaghan, D.||Grey, Sir G.|
|Campbell, Sir J.||Grimsditch, T.|
|Chichester, J. P. B.||Hastie, A.|
|Clay, W.||Hawkins, J. H.|
|Clements, Viscount||Heathcoat, J.|
|Clerk, Sir G.||Hill, Lord A. M. C.|
|Collins, W.||Hobhouse, Sir J.|
|Cowper, hon. W. F.||Hobhouse, T. B.|
|Craig, W. G.||Hodges, T. L.|
|Curry, Sergeant||Hodgson, R.|
|Dunbar, G.||Hollond, R.|
|Dundas, C. W. D.||Hope, G. W.|
|Dundas, F.||Howard, P. H.|
|Dundas, Sir R.||Hughes, W. B.|
|Easthope, J.||Hume, J.|
|Elliot, hon. J. E. P.||Hutton, R.|
|Jervis, J.||Rundle, J.|
|Kelly, F.||Russell, Lord J.|
|Labouchere, H.||Rutherfurd, A.|
|Lemon, Sir C.||Salwey, Colonel|
|Loch, J.||Sandon, Viscount|
|Lockhart, A. M.||Sanford, E. A.|
|Lushington, S.||Scholefield, J.|
|Mackenzie, W. F.||Seymour, Lord|
|Marshall, W.||Speirs, A.|
|Melgund, Viscount||Stansfield, W. R.|
|Morpeth, Viscount||Steuart, R.|
|Murray, A.||Stock, Dr.|
|Nagle, Sir R.||Strutt, E.|
|O'Brien, W. S.||Talbot, J. H.|
|O'Connell, D.||Talfourd, Serg.|
|O'Connell, M. J.||Teignmouth, Lord|
|Oswald, J.||Tennent, J. E.|
|Paget, Lord A.||Tollemache, F.|
|Palmerston, Viscount||Vigors, N. A.|
|Parker, R. T.||Wakley, T.|
|Pease, J.||Wallace, R.|
|Peel, Sir R.||Warburton, H.|
|Pendarves, E. W.||Westenra, hon. H.|
|Pigot, D. R.||Wood, G. W.|
|Price, Sir R.||Worsley, Lord|
|Pryme, G.||Wrightson, W.|
|Rae, Sir W.||Wyse, T.|
|Redington, T. N.|
|Rice, hon. E. R.||Stanley, hon. E. J.|
|Rich, H.||Parker, J.|
ordered to attend the House on the following day, and the petition of Messrs. Hansard to be then taken into further consideration.
moved for the appointment of a committee to inquire into the management of railroads.
wished to know whether a matter which had greatly shocked the feelings of the Christian part of the community was brought under the cognizance of this committee—he alluded to the travelling by railroads on Sundays.
This committee was in fact a revival of that which sat last year. The committee of last year had advised that another should be appointed in the present Session for the purpose of completing the inquiries which had been entered upon. With regard to the question put by the hon. Member, as he was not a Member of the committee of last year, he could not say whether the subject were noticed by them. He took it for granted, however, that the committee had an absolute discretion as to entering on the investigation.
The hon. Gentleman might, if he chose, move for the appointment of a committee to prevent travelling by turnpike roads, cross roads, and foot- paths on Sundays. Such a motion would be just as proper as that for preventing railroad travelling. The fair and manly mode of effecting the hon. Gentleman's object was to stop travelling of all kinds on Sundays. He hoped, when a number of attempts to interfere with the wholesome recreation of the people had been defeated, such an end would not be compassed by a by-path of this kind. He therefore further hoped that this would not form a subject of inquiry before the committee of this year, as it was not contemplated at the appointment of the last committee, and was not sanctioned by the words of the right hon. mover of the present.
The reason urged by the hon. Gentleman (Mr. Warburton) against inquiry into the subject of travelling by railroads on Sunday had no force at all, for the modes of travelling to which he alluded were private, and that by railway was public. One was fairly the subject of public inquiry, the other was not.
thought the committee ought to be first appointed, and it could then decide whether the subject alluded to could be brought under its cognizance.
protested against the appointment of the committee with such a condition. He denied altogether that they had the power of determining by a side wind what the House had already disposed of.
moved the insertion of the name of Mr. E. Tennent in the committee list. England, Wales, and Scotland were represented on the committee, but no Member from Ireland had been put on it. The Gentleman whom he named was of opposite politics to his own, and he named him; there was at present a railroad at work near Belfast.
said the motion could not be made without notice.
As to the names of the Members of the committee, he begged to say that the only change he made in them was the substitution of his own name for the former President of the Board of Trade; and that of Mr. Easthope, a gentleman extensively connected with railroad property, for Mr. Childers, who stated he could not attend until Easter.
considered the systematic exclusion of Irish Members from committees as extraordinary, when it was considered that there were 105 in the House, and seventy-five of them supporters of the Government. He himself had no desire to serve on committees, but he did not see why men from Ireland of equal ability and disposition to serve the public should be treated in a different way from other Members. He gave notice that he should move for the addition of Mr. French's name to the committee.