The Sun.
London, England, 1840-01-17 00:00:00

14:1V IN 1 FMITION.

1
the power was incomplete , for it was quite evident that
during the recess their powers were incomplete, which
still further beset the question with difllculties. The Sheriff
had not ye:, bcce heard, and be believed that all threegh that
officer had a strong impassion that the House of Com-
i mons would interfere. Therefoee, seeing the Sheriff had
e
' taken that course they could not let assist him, so far as the
House of Commons could do.—( Hear.) Admitting their
powers to he incomplete, he, for one, would exercise those
powers, incomplete as they were; and he should be ex-
ceedingly sorry if he shoald be obliged to charge himself
with being a party to proceedings which would interfere
eith the privilege of free publication, and which priviliges
he believed to be essential to the performances of their du-
ties as a deliberative assembly, and one branch of the Con-
stitution._( Hear. )
Mr. FITZROY KELLY next rose, but from the great
noise which ensued from several Members leaving the House,
eve could not hear him for some minutes. We understood him
to say that this was a question which must be decided one way
er the ether. If the Noble Lord was contented with calling
Mr. Hansard to the bar of that House, this prolonged discus-
sion would not have taken place. In the name of justice, do
' not attempt to curtail the liberty of the Sheriff by calling upon
him to account for his conduct in this transaction, be could not
I do otherwise than obey the law, for it is the first and pare-
mount duty for a Sheriff to obey at once the Queen's writ.
f All the Sheriff has done in this transaction was, in fact, in
strict obedience to the Queen's writ which issued from the
Court of Law. Before you allege that he was guilty of any
i conduct contrary to the privileges of this House, 1 entreat you
to consider what power the Shriff had to act in any other way
than what ha- has done. If he disobeyed the writ he was
! liable to have a severe punishment inflicted on turn ; he
was, in fact, liable to fine and imprisonment. And
i vet what are you about to do? You would call upon the
:Sheriff to appear before this House to excuse himself for what 1
he was obliged to. It was not my intention to enter upon the
1 discussion of this subject, but for some observations which were
thrown out by my Right Honourable Friend the ttorney-
i General. He has asked, if you submit to the Queen's Bench
E in this case, must you you not in like manner admit the like
power in every other Court of the realm. I admit this must
feliow, but if it be so, is it an argument that your privileges
are riot to be respected. Let the Attorney-General consider
i
the progress of a cause in an action of libel. When t arrives
to a certain point, the Judges cannot do anything else than ad-
judicate. A subject sues for justice ; he brings an action
(into a. Court, and if that Court have the power to entertain
the question, it must also do its duty in adjudicating
; upon it. If an action for libel. is brought in one of the lowest
(Courts of the realm, such Court is bound to pronounce
'judgment upon the case, if no defence he taken. Suppose the
defendant set up the defence, that the publication was no
i libel—that he published it as a privilege, founded upon an order
of the House of Commons—this would make a different case.
ri but I assert, if my Learned Friend the Attorney-General sat
es Judge himself upon this case, he would be obliged to eater
i tain it, and to adjudicate open it. If, therefore, this House,
1 when their privileges are put forward against an action in a
! Court of Law, complain against such interference, they can
only prevent a similar occurrence by altering the law. It is in
i vale for you to say your privileges are invaded. If you allow
; the Courts to decide in a case of law, they must have jurisdic-
f Hon to carry that law into effect. There was one observation
masse by Om Right Hon. Baronet, Sir R. Peel, which I cannot
I help observing on; he said that this House would naturally
look to the Courts of Law to protect them in their privi-
lerss, when this House had not power to protect
y ..
y ltsself, as during the recess, when this House would
not be assembled. I agree in that observation, but 1 would
ad( how is it possible for the Courts of Law to protect any of
i pew leivileges, unless they knew what those privileges were ;
they certainly have a protective power over your privileges.
y This House is in that respect united to the Courts of Law for
I. the protection of those privileges which they now enjoy, as the
C i ruction:. of the press, an ; the freedom of arrest"to any of itslklem-
here,' The Courts of Law have no right to entertain whether
ieeeb and such privileges are the priv:leges of this House or not.
New, supposing a case, where some Members of tl,is House
1 }.ad been arrested, and had claimed the privilege of Parliament,
1 but by this House at that time not being assembled, he vas
i unable to claim his protection. I would here ask have the
Courts of Law ever been "Jackward in granting protection to
I eine of those resolutions which has been made the law of Par-
; iiament ?—( Hear, hear, hear.) It is a contempt for the Court
r, to entertain the question of privilege, or what is no' privilege.
I would ask by what authority would the Courts of Law dis-
char;e 6 Member of this House from arrest? If a Member of
Parliament be arrested, and he applies to the Court for his
1 ri roteet ion, ihe Judges listen to the application. Now if he ha, e
tin rowsr, how can he entertain or inquire whether the Mem-
i, be; of that House has a privilege from arrest ? The Courts of
Law, therefore, give effect to the privileges of this House, and
this U.,use is much indebted to the Courts of Law for this sup-
i
port. I have already said much more on the subject than I in-
tended, and my purpose was not to anticipate by any lengthened
observations, the discussion which must shortly arise on it. The
Attorney-General has asked what course the House meant to
adept. Whenever the whole evidence was before the House,
t ie will be Mond that those who deny the right of the Courts of
taw to act as they have done will be quite unpre-
pared to state the course this House should pursue. Han-
sard acted under the orders of this House, and for
this he is fully entitled to all the protection this
i thitise eau give him, and I should be very anxious to
propose, at the proper time, a resolution to this effect :
•• That. inasmuch as the Messrs. Hansard have acted con-
formably to the rules of this House, and in obedience to its
realm, this House deems it their bounden duty to hold him
completely indemnified." I would venture to say. for the
future, that if an action be brought against the printer or
publisher, or any other officer of this House, the Government
should instruct their law officers to defend them, and after-
wards report the proceedings to this House. In the case of
Burdett, this !Luse had the undoubted right to act as they
had done. But, by the law, he was delivered from the charge
by to appeal from this Horse. And I would remind :his
!louse, in conclusion, that it is not too late to correct this sole-
take. it has been said by the I-lon. and Learned Attorney-
, (-;,,neral, by his colleague, the Solicitor-General, that
the judgment of the Coax t of Queen's Bench is wrong.
i I would beg leave to ask, does he assert, as a lawyer,
( that they were wrong? If so, bring your writ of error._
r ( hear, hear. ) Let us see whether that which you assert is
the law, or that which the Court of Queen's Bench alleges, is
right. The time is not yet passed for bringing your writ of
error—( Hear, hear)—if you believe the judgment of the
C',urt he wrong, but let the question be tried by the legal and
1 constitutional tribunals of the country.

i Lord JOHN RUSSELL was in hopes that the motion which
he had made would have been consented co by the House, re-
serving the general discussion on this subject to a future occa-
sion. when the parties were called on to appear at the bar.
Although there had not been so much discussion on this
subject as there had been on former occasions ; yet
some assertions had been made n hich he could not omit to
*notice before the conclusion of the debate. With regard to the
general argument he was content to rest his opinion on the
speech of the Right Hon. Baronet the Member for Tamworth ;
) but there had been many statements made which the Right
Hon. Gentlemen had not noticed, and which if they went to
the public uncontradicted, might create an erroneous impres-
sion and a false notion of the position in which they were
i placed with respect to this question. The Noble Lord the
Member for Hertford, had as erted that the privilege which it
was the object of the present motion to protect, had only
existed about five years, and that it had been generally maintained
against the opinion of the Judges of the Courts of Law. Now
ei what was the real fact ? why that before theßevolution of 1688
the votes of the House were printed by the authority of the
Speaker, with the evident intention that the people at large
should know the course their representatives were pursuing,
and the very first Act of the House of Commons, after the re-
volution had been effected, was to print and publish the Decla-
ration of Rights which was, no doubt, the ground upon which
the House of Commons appealed to the people. So that so
far from this privilege of the House printing and circulating.
its proceedings being only of five years duration, it had existed
prior to and since the glorious Revolution.—( Cheers.) It was
true that for a considerable time the Speaker received certain
sums for the sale of the papers, but it was no ground for saying
that the privilege had been abandoned because the papers of
that House had been distributed at a much lower rate. So far
as to the first assertion ; then it was said that they were proceed-
ing against the decision of the Courts of Law. Now what was
stated in the judgment delivered by Lord Denman? Why, it
contained reflections on former Judges for the decisions they
had come to on the question of privilege ; that showed, in his
(Lord J. Russell's) opinion, two things ; first, that they could
not depend upon a uniform decision of the Judges of the Courts
jof Law on this subject, and that five years hence, if the House
abandoned the privilege, it was very likely they might have
Judges who would express a totally different opinion on the
subject to that expressed by the Judges of the present day. The
Noble Lord then proceeded to read several parts of the judgment
of Lord Denman, and proceeded to say that in that judgment
he had the authority of Lord Denman himself for saying that
the opinions of Judges might be given sometimes in the spirit
of partizans, sometimes under excitement, and very often extra-
judicially.--( Loud cheers. )—Now if he was to believe
Lord Denman, that the Judges were liable to make
these mistakes, and to be swayed by such motives,
iii what situation, he would ask, would that House be placed,
if it etas to leave to Judges who might be so influenced—and
the Judges of the present day were certainly not influenced in
favoer of the House of Commons ?—(Cheers.) In what situ-
-1 ution, he would ask, would the House be placed, if it was to
!cave the question of all its privileges to be disposed of by the
I Judges ?—( Cheers. ) He had shown that from the glorious
period of the Revolution these privileges had been enjoyed by
the House of Commons, and the question now was whether it
was to give way upon such a privilege as that of printing its
!, proceedings, and if not, in what way they were to assert it. With
respect to giving way, he must say, that if they once aban-
doned this privilege, and assented to the doctrine of the pri-
vileges of that House being thereafter judged of by Courts of
Law, they must not lull themselves into the belief that other
Judges would pursue the same course that the present ones
had done.—( Hear, hear, and cheers.) If the privileges
of the House were to be judged of by Courts of Law, what
he would ask, would become of the treedem of speech asked
from the Throne as the right of the Commons of Englard?—
(Cheers. ) It was stated by the Lord Chief Justice that there
could be no doubt that the House of Commons might order
at y person to print or publish for them; hut it was not to be '
allowed that individuals were to be injured by calumnious state-
ments. Now, with respect to that, was it not a fact that there
were far more attacks on individuals in the debates of that
House than in its papers? For instance, when the inquiry
took place with regard to his Royal Highness the Duke of
York, the speeches that were then made reflected greatly upon
individuals. What would the Judges have said with respect to
them, if they had to judge of the privileges of that House;
why, they would have said, " True it is you have the privilege
to make those attacks, but you must not admit strangers into
you .Courts r gallery, otherwise you will give the of Law
j ' diction."—( Hear, hear, hear, and cheers.) With re-
uris
spect to the manner of asserting the privilege, without
entering into the question of what should be done hereafter,
the first course that could be properly adopted was to assert it
in the manner proposed by the motion, namely, to have the
parties who had committed the breach of the privilege of the
House at the bar.—( Hear.) The Hon. and Learned Member
who ha I spoken last had stated his intention to move that the
loss of the Messrs. Hansards should be made good to them by
that House ; now what would that do ? why it would be giving
to Jur.es an encouragement to give higher damages, and pro-
bably enable Mr. Stoekdale to obtain an annuity of 5,0001. or
6,0001. a year from the House of Commons.—( Hear, hear. )
What would the House of Lords say to that House if
it went there ? Why this, you have privileges of your own,
' and surely you can uphold them without our interference. In
short, he ( Lord J. Russell) did not see, until the House of
Commons had proved that it had no power whatever, how it
could go to the House of Lords.—(Cheers.) In such a state
of things was not the best course to be pursued that which was
regularly recognised by the House ?—( Hear.) He felt with
the Hon. Member for Tamworth that they were placed in great
difficulty, and the Courts of Law were not at all inclined to
assist them, but rather to throw difficulties in their way. It
; was true that the House of Commons had the power of calling
the Judges to that Bar, and impugning their conduct, but tho
adoption of such a course would be an extreme public incon-
venience, because there could be no doubt that the Judges had
acted conscientiously. In conclusion, the Noble Lord ex-
pressed a hope that the House would adopt the motion he had
submitted for its considefation, and he felt convinced the House
would give up son.e of its most valuable privileges if it snb-
in:tted to the present one being taker, away.—(Hear, hear. )
Strangers were then ordered to withdraw. ,