The Sun.
London, England, 1837-06-09 00:00:00

TIM SUN, LONDON, riIIDAY, JUNE 95 18i7.

House of Cominons.—(Hear, hear.) lie had come to
these conclusions on a due and deliberate consideration
of the case.—( Hear, hear.) He regretted that the
high legal authorities who had spoken on the sUbject did
not apprise the lay Members of the House beforehand of
all the technical and legal difficulties which interposed in
the way of the four courses which had been painted out
for the guidance of the House. 131 it it was because hr
felt to strongly the justice of his case that he tas content
to take the matter calmly; and resort tfi iio violent pro-
ceedings in asserting tbv. Eght. He had heard with great
regret the a(laite of the Honourable and Learned Atter-
neystieneral, that the House should at once resort to the
peremptory assertion of this privilege ; but he hoped the
House would pause before it came to any such strong re-
solution. It was never too late to consider, especially in
a case involving it question of so much importance as that
under discussion. There were many difficulties in the
course proposed by the Attorney-General. There was
the distinct declaration of a Judge of the highest character
that the publication of any matter which might be deemed
libellous, by Mr. Hansard or any other person, even
acting under the authority of the House of Commons,
could not be justified ; but he (Sir R. Peel) was in this
ease: a Judge also, and he was free to declare his opinion
that that declaration could not be maintained. Although
there were difficulties in the way of adopting the alterna-
tives proposed by the Attorney-General, the course he sug-
gested was not by any means free from them either. As
to the supposition that the Court of King's Bench would
decide against the privilege, he (Sir R. Peel) entertained
no such belief : and he, therefore, objected to the suggestion
that in such a case the House should assume a bold part,
and proceed to assert its rights. But, whatever decision
should be come to, he (Sir R. Peel) was of opinion, that
unless the House of Commons had the right of judging on
the publication of what came before it, its functions as a
distinct Legislative branch were perfectly at an end.
Lord J. RUSSELL, after the able and unanswerable
arguments of the Right Hon. Gentleman—(Hear)—felt it
would be little less than presumption in him to enter into
the details of the case at issue. But as he had taken no
part in the former discussion on the subject he did not think
he would be acting right to let the question come to a vote
without expressing his opinion on it. He fully agreed with
the Right Hon. Baronet that the privilege in dispute was
an essential incident of the functions of the House of Com-
mons.—(Hear.) The whole matter rested on the grounds
on which Lord Ellenborough had put it. When the ques-
tion came last before the Court of King's Bench, in the
case of Burdett and Abbott, on that occasion the Lord
Chief Justice had decided that the House of Commons
had the power to enforce the free and full exercise of its
own functions. Now, those functions could not be exer-
cised fully or freely if the documents in question were printed
solely for the use of the Members of the House of Com-
mons, and cot published for the use of the public.—(Hear.)
He (Lord J. Russell) was of opinion that the objection of
the Right Hon. Gentleman to the position taken up by the
Hon. Member for the University of Oxford and Lord Den-
man never could be overcome in any way. If 658 persons
were allowed each the power of receiving and reading the
proceedings of the House of Commons, it was quite evident
that there could be very little secrecy, and, consequently,
very little protection against alleged calumny. Thus,
while no protection would be afforded the subject against
libel on the one hand by adopting the plan they suggested,
the proceedings of the House would be crimped and the
public deprived of the benefit now enjoyed by it. He
(Lord J. Russell) would suppose an ordinary case—one of
everyday occurrence—a petition is presented against an in-
dividual holding an office of trust for abuse of the power
conferred by that office. If this were not to be printed and
published the House would perhaps do an injustice to the
accuser or the accused, by either affirming or rejecting the
charge, on no other grounds than the allegation. of the peti-
tion : whereas, if it were, the party petitioned against would
have an opportunity of justifying himself, and the world
would have an opportunity of adding any further testimony
on the subject. If the House were prevented from publi-
cation its utility as a branch judicature would be destroyed
—its power of judging would be lost or put an end to—
and its decisions would consequently fail to be respected.
The case before the House was not a solitary one. It
was supported and upheld by long practice and powerful
precedent. In matters of publication and sale of the papers
of the House it bad been the practice since 1711 ; and that
practice was kept up continuously ever since. It was not
a new practice, but one ancient and of long establishment ;
and it took its date from the period of the Revolution on an
illegal proceeding of James the Second, as the Right Hon.
Baronet had already shown He (Lord John Russell) ad-
mitted that the case involved very considerable difficulties ;
but he agreed with the course adopted by his Hon. and
Learned Friend, as the best in the circumstances. It was
the most authoritative manner in which the subject could
be brought before a Court of law. That course would be
the most conformable to the proceedings of Parliament, and
to the practice of Courts of law and justice. He was con-
vinced that, after due argument, the Court of King's Bench
would decide in favour of the privilege of the House of
Commons. He thought the power of adjudicating on their
own privileges should be always kept in the hands of the
House of Commons, whether they thought fit to exercise
them for their own benefit, or for Abet of the public at large.
—(Hear, hear.)

Mr. PEM BE lITON would be glad to concur in the vote
proposed on the other side of the House, if it was in his power
to (to so ; but, having had the misfortune to differ on this oc-
casion from some of those to whom he looked up with the ut-
most respect, he should consider it a cowardly dereliction of
duty on his part if he refrained from speaking his senti-
ments on that occasion. It was not now any longer the
question whether the report of the House of Commons
complained of was published by its authority, and, there-
fore, privileged. The question, in point of fact, was, were
those resolutions which this House had thought fit to adopt,
asserting generally their privilege, to be followed out in all
their consequences ?—(Hear, hear.) It was a very dif-
ferent question whether the report was a privileged publi-
cation, or whether the order of the House of Commons
afforded an indemnity for any description of publication.
The report might or might not be privileged ; on that he
had never expressed an opinion, but what he would say
was, which he was sure nine-tenths of the bar concurred
with him in, that if the nature of a publication did not af-
ford privileges in itself, the authority of the House of Com-
mons could not confer it on it. He (Mr. Pemberton) de-
nied the right or power of the House of Commons to
establish laws on its own instance. Whoever assented or
dissented from him, he maintained that no order of the
House of Commons could make a publication privileged if
it had not that within itself which made it, so ; nor, if it
were a libel, could it in any degree justify it in the eye of
the law.—(Hear,) But what did the first resolution as-
sort ? Connecting it with the paragraph of the report on
which it was founded, no Court of any kind could take
cognisance of anything which had the sanction of the
House of Commons. What did that paragraph say ?
" That by the law and privilege of Parliamnent this
House has the sole and exclusive jurisdiction to determine
upon the existence and extent of its privileges, and that the
institution or prosecution of any action, suit, or other pro-
ceeding for the purpose of bringing them into discussion or
decision before any Court or tribunal elsewhere than in Par-
liament is a high breach of such privilege, and renders all
parties concerned therein amenable to its just displeasure,
and to the punishment consequent thereon."
That was the broad affirmation of the Committee of Privi-
leges. What was their authority ? Nothing less than the
decision of Courts of law for the last two centuries, in which
Courts these privileges had been discussed. The question
now was, would the House attempt, on its en n responsibility,
to interpose its authority between the King's subjects and
the law of the land ? From the earliest period alluded to
in the report those privileges now sought to be made so sacred
were discussed in the Courts of law and justice. What
eßasrideignemthat, e reign of Charles the Second, when Sir
was t
Orlando ipresided over the Court of Common
Pleas ? In a case tried before him the House of Com-
mons passed a resolution, declaring that no Member of Par-
liainent should be sued in a Court of law during the sitting
of Parliament. What said that celebrated Judge
" I shall give (said he) all reverence, as becomes me, to
all opinions and votes of so honourable a body ; but I am
under the obligation of an oath, which is greater still, to do
equal justice to all men to the best of my belief."
After referring to his authorities the Learned Judge then
proceeded—

" The use that I make of this is, that resolutions and
votes of the House. of Parliament arc not so conclusive in
Courts of law but that Judges should give their judgment,
even though it were contrary to them, because they arc on
their oath."

Up to the time of the revolution and subsequently the
law stood in the same manner. The Hon. and Learned
Gentleman then quoted two cases, one of Ashton and
another, the name of which we could not catch, in support
of this view of the subject. But who was the last that
asserted this right ? It was that constitutional asserter
of the people's rights, Mr. Fox, in an action brought
against the High Bailiff of Westaninster.—(Hear, hear.)
But the doctrine laid down 'by Chief Justice Holt was
that the Judges were " bound by their oath" as to the
manner in which they were to decide the law in cases like
the present. But was any claim of the House established
by the decision in the case respecting which Justice Holes
opinion had been referred to ? hear.) A
dissolution of the Parliament took place at the time, and
from that day to the present no one had dared to inter-
pose against the law as it was at that time laid down.
Now, if there was one question of privilege more important
than another with reference to the proceedings of Parlia-
ment it was the freedom of speech. But it was not by
means of the freedom of speech used in that House, or
by the mere printing of the votes (as in the present in.

stance), that the proceedings of the House were made
publH, !nit it was by the constant and daily publication
in toe nswApsners—(Hear)—and which it was not at-
tempted to be denied was in reality a breach of the pri-
leges of that House. The Hon. and Learned Gentlem in
then cited the cases of Mr. Frecling and others, in sop-
port of the opinions he entertained upon the case before
the House, arid sail that the airtno miisetsal opinion
of Westminster Hall coincided with his civil. Th e
people, continued the Honourable and Learned Gentle-
man, would not., and ought not, to submit to such pro-
ceedings as the House had adopted in the present in-
stance. They would not, and ought not to submit to that
House attempting to arrogate to itself the right of inter-
posing its authority to prevent the trial of a legal question.
—(Hear, hear.) With regard to the resolutions which the
House had thought fit to adopt, lie would tell them that
they might commit all the lawyers, all the Counsel in
Westminster Hall, and all the Julges on the Bench ; but
they must first crush the spirit of the people of England
before they could succeed in enforcing 'them —(Bear,
hear.) And with respect to the House of Lords, looking
at the conflict in which that branch of the Legislature had
been of late, and might soon again be, involved, they might,
if they chose, invest them with this armour of privileges—
this panoply of proof ; but, for himself, he would say that it
was from the high respect and consideration he felt for the
House of Lords that he did not wish •to see them em-
b. irked in a contest from which it was his opinion that Par-
liament never could retire without having its privileges, in-
stead of being strengthened, cruslied.—(Hear, hear, and
cheers.)
Mr. C. W. WYNN then rose, but owing to the indis-
tinct manner in which the llon. Gentleman spoke, and to
the conversation which prevailed in"the House during the
whole of his speech, we regret that we are unable to give
more than an outline of his observations. There had been
several attempts similar to the present made tat different
periods, and they had all ended in the same way, both with
respect to the course pursued by the House of Lords and
by that House. The Hon. Gentleman then cited two cases,
one in 1768 and the other in 1788, and in each of which a
Justice of the Peace was the party implicated, in the former
of which the attorney employed in the action was com-
mitted to Nea''sate, and in the latter the party himself to
the custody of the Sergeant at Arms, and yet in neither
case did any Court of Law impugn the conduct or question
the privileges of the House. With regard to the case of
Sir Francis Burdett, he (Mr. Wynn) had been informed
by Mr. Windham himself that lie gave way in . that case
solely on the ground that a Court of law would not en-
tertain the question. As to the circumstances of the pre-
sent case, the report of the Ccrnmittee could not be con-
sidered as authoritative until it was adopted by the House ;
and be could not object that any Court of law should have
a communication made to it by the Speaker on the subject
of these actions, and that the resolutions which the House
had adopted should be also communicated to it. But the
Court might direct a new record, and that might bring the
House into collision with the Courts of law.—( Hear, hear.)
Notwithstanding this, the case involved privileges without
which that House could not discharge its duties—(Hear,
hear)—it involved a question which ought not to be lightly
entered into, and was at the same time a case where it
was absolutely necessary something should be done. The
Hon. Gentleman then, after alluding to the case of Mr.
Kenrick, which had been referred to by his Right Hon.
Friend (the Member for Tamworth), and contending that '
he (Sir R. Peel) had clearly shown that the House
could not have justified their proceedings in that case,
unless they had had the privilege of publishing the evi-
dence, detailed the circumstances of the case under the
consideration of the House, and stated that the rule
had been, up to as late a period as 1817, that all peti-
tions were printed in the body of the votes—that evidence
of all sorts was printed—and was formerly the source of
considerable profit to the Speaker. Amongst other things
the evidence in the case of the trial of Lord Melville
was printed. If they could extend that privilege to the
printer, the same privilege might, upon the same ground, •
be extended to all. There were some difficulties in the
present case which ought to be guarded against. If the
action was brought while Parliament was not sitting the
House could conic to no resolution. In that case he saw
no reason why they should not now authorise the Speaker
to make communication to the Courts, informing them
that the House had come to such resolutions.

Mr. 1-IL,TME said that if any Hon. Member had pre-
viously entertained any doubts as to the propriety of the
resolutions, those 'doubts must be now strengthened by the
course proposed. He doubted very much whether it was
a judicious one. Suppose a Court should overrule the
objection, what was to be done ? The speeches of the
Right Hon. Baronet (Sir R. Peel) and of the Right
Hon. Gentleman who spoke last ought to fortify Minis-
ters in adhering to the resolutions without taking any
other step. He was nut disposed to submit their privi-
leges to the judgment of the House of Lords. They
were the best, and ought to be the only, judges of their own
privileges. He did not see how it was possible to discharge
their duties to the public if their proceedings were. not
to he published.

Lord HO WICK considered that the course now pro-
posed was in every view of the matter the best the House
could adopt. Tney would thus follow the precedent of
1810 in the case of Burdett against the Speaker of the
House of Commons. That was, perhaps, even a-stronger
case than the present, and yet the House came to the con-
clusion that the Speaker ought to appear, and they came
to this conclusion after mature deliberation, and on the re-
port of a Committee (the Noble Lord read an extract from
the report, recommending that the Speaker should appear
to the action). Here an action was brought against Han-
sard and Nichols by Stockdale, and in his opinion the
course ought to be to allow theM to plead, that the Court,
as in the case of Burdett, might have an opportunity of
becoming acquainted with the ground of action. It was
asked how the House would act if the Court decided
against them. He had no hesitation in saying in saying
that however the Court might decide, that House must
still maintain its privileges as they did in 1810.
Mr. T. DUNCOMBE said he would support the mo-
tion, and he congratulated the people of England on this
virtual abandonment of the Resolutions to which the
House came the other night. It was a virtual abandon-
ment, though Ministers talked boldly, and spoke of what
they would do. They said they were not afraid, but if
their conduct upon this occasion was not fear it was cer-
tainly the best imitation of fear he ever saw. On the
night they brought forward these Resolutions their voice
was the voice of a lion, but upon the present occasion their
acts were the acts of hares. They should recollect that,
in the case of Burdett against the Speaker, there were no
such Resolutions as these upon the table of the House.—
(Hear, hear.) Ho did not believe the people of England
would support them in these Resolutions.
Mr. Sergeant WILDE concurred in the course proposed
by his Hon. and Leatlned Friend the Attorney-General. It
was seid they had a precedent in the case of Burdett against
the Speaker. He did not consider the course taken in that
case to have been a prudent or a very constitutional one. The
question was as the best course. His Hon.' and Learned
Friend the Attorney-General told them there were prece-
dents of letters having been directed to the Court of King's
Bench by the Speaker, and disregarded. It might be a ques-
t on whetlier a Communication from the• Speaker was a con-
stitutional course, but he did not think such a communica-
tion inconsistent with the Resolutions, for though the Court
might entertain the question, it would not follow that the
Judges should be called to the bar for breach of privilege.
There were numerous instances in which parties were de-
clared guilty of a breach of privilege, and yet had not been
called to the bar or punished. His opinion was, that the
parties who brought these actions ought to have been im-
mediately called' to the bar, for breach of privilege. It was
desirable as much as possible, for the House to avoid com-
ing in collision with the Court. of King's Bench, or any of
the other Courts of Law ; and the instances of the House
having come into collision with thoSe Courts were so few,
that it was difficult to form a precedent. Now, the course
which the Attorney-General proposed was not at all likely
to bring about a collision, but rather to avoid it. That House
had asserted a privilege, and all that was proposed was, that
the Court of King's Bench should be apprized by a plea that
the House had asserted this privilege, and thus to be a bar to
an action. He would not say what the Courts might ulti
mately decide, but he knew that the general opinion in
Westminster-hall was against the privilege of the House.
But be was convinced that those who gave that opinion had
not fully considered the subject, and he would recommend
the Attotney-General not to argue the case before the
Court of King's Bench, but merely to call for its judgment.
The House should support and hand down to its successors
its privileges unimpaired. The grossest ignorance was daily
shown in the public press in arguing this question. What
could a corrupt Government require more than secrecy,
and this would be obtained by preventing the publication
of the proceedings of the House ? The opening of the
gallery to those who published the reports was a most be-
neficial act for the public. He had defended Mr. Stock-
dale, and got a verdict, on the ground that the work was
so indecent it ought never to have been purchased.—(A
laugh.) The Hon. and Learned Gentleman quoted many
cases, to show that Courts of Law had never interflo-ed
with the privileges of the House when that privilege had
been previously asserted or declared. It. was his firm con-
viction that it was necessary- for the well-being of that
Howe that it should be well versed in the law of the land.
In this case he believed the privilege -of the House was per-
fecti3 consistent with the law of the land.
Mr. G. F. YOUNG said that it had been urged that it
was absolutely necessary to the existence of the House and
the benefit of the people that the privileges of the House
should be maintained ; but then cane the question whether
the privileges of that House, sustained, perhaps, by a small
majority, were to be considered, superior to the law of the

land ? If they were to throw the shield of privilege over
such cases much injostioe'might be done, and he, therefore,
must that he should not like to see, however Parlia•
ment..try it might be, irresponsible power of this description
exercised by either that House or any body of men who
were subject to all the inflaences of popular opinion.
Sir ROBERT PEEL, in explanation, said that if the
Hon. Gentleman would, in the course of to-morrow, go
tigalti to the. library, and refresh his historical reminiscences
be would find thltt it had been connecting two circum-
stances which were distinct and separate,—(Hear, hear.),
He would find that the resolutions of 1688 and the Bill of
Exclusion were separate and distinct transactions.—( Hear.)
Mr. G. F. YOUNG denied that he had adverted to the
Bill of Exchsion.
Sir It. PEEL—Then I was or course in error.

Mr, G. F. YOUNG observed that, although he could
not put his hit Drical recollection in competition with that
of the Right lion. Baronet, he still was well aware that
the Bill of Exclusion was not pissed in 1688. He had
only alluded to the resolutions of the Houses of Lords and
C3mmons.

The ATTORNEY-GENERAL, in reply, said that if
is Hon. Member for Tynemouth would again resort to the

library he would find that the proceedings of that House
were published for the public information. He (the At-
torney-General) was glad to find that his motion had not
been seriously opposed. It was quite necessary that some
course should be adopted, and he thought that his was better
than any other that had been suggested—better even than
directing the Speaker to write a letter to the Judges of the
Court of King's Bench. He had no doubt that it would
gratify Mr. Stockdale to be sent to prison. Mr. Stockdale
might, perhaps, deserve to be sent there ; but, paltry as he
might be, it might give him an importance which did not be-
long to him, and, therefore, he, for one, would be unwilling
to gratify him at the risk of setting the country in a blaze
for such a person. The only course that remained to them
was either to plead, or to let judgment go by default. In
the 'atter case the plaintiff would be entitled to execution,
as a matter of course. There was another course open to
themnamely, that adopted in the case of Lord Newbury.

In that case the record was ordered to be laid upon the
table, and then taken to Palace-yard, and burnt. He was
not prepared to take that course. His Hon. and Learned
Friend (the Member for Newark) had suggested another
course. He recommended that judgment_ should he al-
lowed to go by default, and then that notice should be
served on the Sheriff not to -execute the execution. He
(the Attorney-General) doubted very much whether the
Sheriff would obey such a notice ; but it seemed to have
been forgotten that there was another objection to that
course—namely, that the writ might be issued at a period
when that House was not sitting.
Mr. Sergeant WILDE observed that in such an event
the amount might be lodged with the Sheriff.
The ATTORNEY-GENERAL did not think that this
would obviate the objection, because then the damages
would, in effect, he levied. He contended that the resolu-
tions which they had agreed to merely embodied the law of
Parliament as it had existed from the time of Fortescue
down to the period of Lord Ellenborough. Parliament
had always been the only judges of their own privileges,
and in this view the bulges of Westminster Hall had al-
ways concurred. The House of Lords were as anxious to
maintain their privileges as they were. In 1827 it hap-
pened that one of the messengers of the House of Lords
took an umbrella from an individual on entering that

House. The umbrella was lost, and an action for it was
brought against the Messenger. What was the conse-
quence? Why that the party and his solicitor were
called to the bar, and if they had not consented not only
to abandon the action, but to make an ample apology,
they would have been both sent to prison.—(Hcar, hear,
and laughter.) This showed that the Lords were never
behind hand in asserting their privileges. He had not
brought forward his motion without due consideration of all

the remedies suggested; he thought it the least objection-
able, and, therefore, he hoped the House would agree to it.
The question was then put, and the motion agreed to,
after which the Attorney-General was instructed to plead
to the actions, with a view to the assertion of the privileges
of the House.

Mr. HU ME gave notice that he should bring forward

his motion respecting household suffrage on the ?7th inst.,
when he hoped the Noble Lord would throw no impedi-
ments in his way.
Lord D. STUART wished to come to some under-
standing with his Majesty's Ministers respecting, the motion
which he had on the paper of that day. He was anxious
to bring that motion forward, and he hoped that an oppor-
tunity of doing so would be afforded to him at an early pe-
riod. He was willing to admit that his motion ernhi aced a
charge against the Noble Lord the Secretary of State `►'or
Foreign Affairs.—(Cries of " Order, order.")
The SPEAKER said that unless the Noble Lord meant
to proceed with his motion he ought not to enter into any
of the topics connected with it.

Mr. IiROTHERTON—I shall object to the Noble
Lard's going on with his motion at this late hour.—(A laugh.)
Lord D. STUART had no intention to go into his
motion, but he hoped the Noble Lord would appoint a day
when he could bring it forward.
Lord J. RUSSELL meant to ask the House to allow
Orders of the Day to take precedence of Notices of Motion
from the 15th to the 30th of June, and after that period
the Noble Lord might, on any Tuesday or Thursday, avail
himself of any opportunity he thought fit for bringing for.
ward his motion. _

Lord D. STUART would not be put aside by such
petty, paltry, and shabby shuffling, and consequently he
should bring forward his motion on the 20th of June.
Mr. A. THE VOR moved for a return of the number
of places of worship in connection with the Established
Church, and of those in the Dissenting interest, in the
parishes of South Shields and Jarrow, Sunderland, Bishop
Wearmouth, Monk Wcarmouth, Stockton-on-Tees, Darling-
ton, and Gateshead,in the county of Durham, with the num-
ber of sittings annexed to each, and the average number
of persons attending them severally on each Sunday.
Lord J. RUSSELL did not think the House could
agree to this motion.
After some further conversation, in which Mr. Lamb-
ton:" Sir H. H. Inglis, and other Hon. Gentlemen took
part, the motion was negatived without a division.