The Sun.
London, England, 1840-01-23 00:00:00

ney must be committed.—(Cries of " Hear, hear.")
If the attorney were to be allowed to bring fresh
actions, why the very object of committing Stockdale
would be frustrated.—(Hear, hear.) It might be hoped
that when the attorney was committed his punishment
would operate as a warning to others.—(Hear,
hear.) Thee, as to the precedent, thei e were many,
in both Houses, of committals of attorneys. And the
Committee of 1771 expressly directed that course to
vindicate the privilege of the House. What sign of
repentance had they given for what they had done ?
or what reason had the House to suppose that they
would not persist in the course which they had hitherto
pursued? Did the Right Hon. Gentleman give any
sign of regret for these breaches of privilege ? Or had
the Judges of the Court of Queen's Bench expressed
an intention of following a different course.—(Loud
cheering.) He had not been in Court that morning,
but if that manifestation of feeling had taken place
which was alluded to by the Right Hon. Gentleman,
he could not contemplate it without feelings of alarm,
because if they trusted their privileges to Westminster
Hall, and Westminster Hall was unanimously against
them, what was the situation of the House of Commons ?
For not only the present Judges, but the bar (from►
whom future Judges must be selected), were decidedly
against their privileges—(Cheers)—and this was
brought forward as an argument why they should now
cease from pursuing the vindication of them. There
was no room for hesitation, and they would stultify
their proceedings if they were now to falter.—(Loud
cheering.) The Right Hon. Gentleman had made an
observation respecting the warrant of commitment.
He (the Attorney-General) had not seen that warrant,
but if it did not express the grounds of the commitment
he the more approved of it, and would take upon him•
self the responsibility of adopting that course. The
Right Hon. Baronet said that if it set out the nature
of the contempt committed properly, it could not be
noticed by any Court. So said all the Judges,
except Holt, who denied that such was the ease,
and Lord Denman, who reserved to himself the
right of judging whether it was a breach of
privilege or not. If he had entire confidence in the
Judges in matters of privilege, he should not hesitate a

moment in setting forth the nature of the contempt—
( Cheers from the Opposition)—but he had no hesita-

tation in declaring in his place in Parliament, that he.
had not confidence in the Judges in deciding matters of
privilege.—(Loud cheers from the Ministerial benches.)
It was therefore the opinion of the Right Hon. Gentle-
man, the Member for Ripon, that the Court of Queen's
13..2nch bad come to an erroneous opinion on that ques-
tion. And such was the opinion of all the legal Mem-

bers of that House, with the exception of his Hon.
Friend the Member for Ipswich. He (the Attorney-
General) knew the hardships of following the prc-

course.

The Sheriffs well knew What course

could be _ pursued ; Mr. Stockdale well knew it.

and the public all knew the grounds on which they
proceeded. It was a mere technical objection that had
acen made—a mere technical objection wholly irrespec-
tive of the merits of the case, In Lord Shaftesbury's
case the cause of commitment was not set out on the

warrant, it was enough that he had been guilty of a
breach of privilege, and that was the cause of his com-
mitment. The Right Hon. Gentleman opposite had
. .

taunted him with declaring that the resolution of that
House directing the Sheriff to refund the money would
lave been a sufficient defence to an action by Stock-
dale. He (the Attorney-General) had said it—he said
t then, he believed it was a defence, and on that ground
the rule ought to have been discharged. And indeed

be would not believe that he was wrong, for the Judges
that very day after hearing the arguments, deli-

,crated for a lull half hour befOre delivering their present

udf,r,ment.

He, therefore, thought that every body

.could allow that it was a fit cause for their considera.-

ion ; and it they had acted as then predecessors had

lone, they would have discharged the rule.

He (the

Attorney-General) did not regret the course that bad
teen taken on the present subject.—( Hear, hear.)
In the first instance, they had placed confidence in the
Judges, believing, with regard to a matter of privilege,
h.v would have followed the course of their prede-
cessors. For that reason, he had Advised the House
lot to enter summarily on the question, but to appeal

.o the Judges. They had appealed, and they had
tppealed in vain ; for these Judges had come to ad.•:-
.. .

ision which he believed could not be defended.

Chat being so, he (the Attorney-General) said
they were bound to defend their privileges by the
xercise of those powers vested in them by the

Constitution, namely, by proceeding in a summary man-
ner, and defending their own privileges by their own

strength. The power of commitment was a great wea-
don—the Constitution allowed them only to use it cau-
iously—only to use.it in self-defence, and he thought
it was a weapon they were fully justified in using on
the present occasion. He (the Attorney-General) re-

;retied most sincerely that 'it should be necessary to

proceed criminally against Mr. Howard, but as there
was an overwhelming necessity he had no hesitation in
voting against the amendment of the Rght Hon. Gen-
tleman opposite, and supporting the motion of the
Noble Lord, the Secretary of State for the Colonies.
Mr. Sergeant Talfourd was then called for, when
Mr. FRESHFIELD rose and said he would stand
but a very short time between the House and the Hon.
tad Learned Gentleman opposite. He rose, feeling
that the profession to which he had the honour to be-
long would be disgraced if he withdrew from the ques-
tion without protesting, in the most strong and positive
rerms, against the course that was then proposed to
be adopted. They were then, after they had com-
mitted Mr. Stoekdale, going to commit his attorney,
md thus deprive him of all legal aid. He (Mr. Fresh-
field) asked there why they did not commit the Judges
and the Counsel who had been concerned in the case,
he could then have understood why the attorney should
be committed among the rest. The Hous© at present
was proceeding to make a distinction by attacking- the
lower branch of the law only. He supposed the House
imagined that they would have more success, because
the officers he alluded to had less power and less sym-
pathy with the public. The Hon. and Learned Attor-
ney-General had said that the attorney had offended
against the resolutions of the House. They had gone
to the Court of Queen's Bench, and that Court had
affirmed the right of the plaintiff. The plaintiff em-
ployed an attorney, who prosecuted that action, and
lent his professional aid in prosecuting similar actions.
It appeared to him the power of the House was dimi-
iished when it was exercised in that way, because the
[louse must be aware that persons having a right will ever

,mploy a professional man to carry that right through
every Court in the kingdom. He (Mr. F.) had heard

that Mr. Howard lead been committed to Newgate—he
was not less an attorney because he was there. There

.vere thousands of solicitors who would feel themselves
disgraced if they were not to afford assistance when any
subject had occasion for it, and it was in their power to
render it.—( Hear.) He (Mr. Frcshfield) thought that
a Court of Justice might enforce an attorney, if he were
An officer of its Court, to render assistance to any man
in need. He apologised for interposing, but he thought
It was his duty to make that simple, straightforward,
honest declaration.—( Hear.)
Mr. Sergeant TALFOURD then said that it was
most painful fot him, on the present occasion, to vote
.igainst the opinions of his Hon. and Learned Friend
the Attorney-General, and against the majirity of that
douse, but when he heard strange doctrines advocated
by his Learned Friend, he felt himself imperatively
called upon to speak. It had been said that technical
objections had been made, now he (Mr. Sergeant Tal-
lourd) thought that they had then arrived at that junc-
ture when no professional quirks or quibbles would avail
—they had arrived at that high prospect, at that 111 a-
inentous period when professonal aid was no longer of
my service, but which required more awful and deep
consideration. In that House, it had been his -Jot
to hear the Learned Attorney-General—for whoso 0..r-
-tiestness, singleness of mind, and abilities, ho had the

greatest veneration—he (Mr. Sergeant Talfourd) had
said it had been his lot to hear his Hon. and Learned
Friend arraigning the Judges of the Court of Queen's
Bench—(Cheers from the Opposition)—arraigning them
not with respect to any authority they had usurped, but

. -
with respect to a judgment which he himself had in-
vited them to declare—(Hear, hear)—for not having
decided with him alter an unexampled argument of
three days' continuance. He, had heard a Noble Lord
(Lord Teignmouth) on the opposite bunches arraigning
the Judges in a similar form. He heard the great leader of
the great Conservative parry in that House, gently and
delicately commenting on the judgment of the Court of
Queen's Bench. He (Mr. Sergeant I'.) said that this
was a most tremendous contest against the genius and
majesty of the law. The question on which they were
now debating. was, whether the serene majesty of the
law should be recognised in after ages, or whether the .
y
judgment of a fluctuating popular assembly, at all times
liable to tumults, should prevail. The question
t. was no
less than that, and he (Mr. Sergeant Talfourdr said that
if a Court had come t 0... an erroneous opinion on their
privileges, there was still a higher tribunal that might
decide in their favour.—(A laugh.) The Queen's
Bench had in olden times struggleli to lord_ it_ over_ the
Common Pleas, and the Chancery overboth. That
had been the struggle in former times, but such was not
the position at the present moment—there was no con-
test between the Court of Chancery and the Common
Law Courts, nor between that House and the laws of
England. If the judgment of the Court of Queen's
Bench were wrong, why did they not persevere in that
course in which they had first begun ? Why did
they not carry it by a writ of error into the
Exchequer Chamber? He would not at that period of
the debate enter into a long argument on the question,
nor would he go over the ground that had been trodden
by those who had proceeded him in that debate. He
would merely apply himself to the consideration of the
subject then before the House. They had determined
that a breach of privilege had been committed ; the
question, therefore, was were they to call the attorney
in the case, before them. He (Mr. Sergeant Talfourd)
had not heard why the attorney had the preference
over the Sheriffs-,.-the preference over the Counsel,
and the preference over the Judges of the Court of
4ueen's Bench.—(Loud cheers from the Opposition
benches.) He (Mr. Sergeant Talford) could conceive,

EVENING EDITION.

I as was once the case, an attorney bringing
actions against as many newsvenders. That attorney
had no real client ; but in the present case
they had got the plaintiff, and they had committed
him for a breach of their privileges ; he asked them why
they should visit the attorney with punishment, and
pass by the Judges and the Counsel ?—(Loud sheers
from the Opposition.) In fact, it was " Letting I dare
not wait on whom I would." He (Mr. Sergeant
Talfourd) asked whether the House was not exercising
a most desPotic power. They had every ingredient
for despotic power. It was very different from the
despotism of a single individual, who was capable of
being restrained and subdued by circumstances, subject
to pity and sympathy, relenting and human. But there
they showed a combined body swayed by no affec-
tions, liable to no relenting, in fine, a body, who
bad left their hearts behind them.—(Loud cheers.)
He begged to remind the House that they were then.
setting a precedent, which after Houses of Commons
might choose to follow. The Right Hon. Baronet,
who had delivered on that occasion a speech which, if
anything could, would have convinced him—the Right
Hon. Baronet had intimated an apprehension that teat
House was inferior to their illustrious predecessors.
He (Mr. Sergeant Talfourd) said if they were degraded,.
that was no reason why they should descend still lower.
He implored them to consider well before they entered
into a conflict with the authorities of the Jaw—before
they invaded the authority of the Court of Queen's Bench,
In conclusion, then, he trusted they would not commit
the gentleman then before the House, who, in his
opinion had committed no offence against God or
man.--( Hear, hear.)
Sir R. -PEEL trusted the Hon. Gentleman who
had just sat down would not feel it any way disre
respectful to himself if he suggested that a few evenings
ago was the proper time for answering his (Sirß. Peel's)
speech. The question then was whether Mr. Burtoa
Howard should be called to the bar.—(Hear.)
___.. . • . .

He (Sir Robert) considered it strictly consistent. with
the Con,servative principles on which be bad always
acted, to maintain for every one of the great institu-
tions of the country the privileges which they possessed.
—(Hear, hear, and cheers.) The question was, whe-
ther the House of Commons was entitled to this privi-

lege, which be believed essential to the performance of

its functions—(Hear, hear)—and he believed that he
was adopting the true Conservative policy—if that
belief were well founded—in attempting to support the
privilege.—(Hear, hear.) When had he ever shrunk
from resisting any attempt on the part of the House of
Commons to encroach upon the privileges of the other

branches of the Legislature ?--(Hear, hear, hear.)
And 'that course he would continue to pursue.
But when he found an attempt made to rob the House

of Commons of privileges to which he believed the/
were entitled from the necessity of the case—in that

case, actuated by the same principle, he would support
that privilege.—(Hear.) It was said that he in-that main-
tained the tyrant's plea—necessity. Why, in so doing,
he had quoted the authority of Lord Denman—(Loud
cheers)—who had distinctly admitted that any privilege
necessary for the energetic discharge of their functions
they must have.—( Hear.) And unless the House
could itself vindicate that privilege it could have no force

or efficacy. Again, he considered that in taking this
course he was conforming to the almost universal opi-

nion of the House, as formerly expressed. Was the
Learned Sergeant aware of the resolutions to which the
House had come to in IS37?—(Mr. Sorjeant Talfotird

here whispred, " I was not there.") Not there ? yes!
that was the complaint which he (Sir Robe:t) had to
make against the Learned Sergeant.—(Hear, hear.)
He had been there himself, considering it to be his duty
to express his opinion on a great constituiional question.
He had witnessed a nearly unanimous expression of opi-
nion ; and to that—unLi! rescinded—was not he entitled
to adhere ?—( Hear.) The resolutions were supported
by Si: Frederick Poilock, by Sir Viliiam Follett, by

the Attorney and the Solicitor Generals, and there was
hut one dissenting voice—that of Sirß Inglis.—( A laugh.)
Now, why had not the lawyers of the House then
warned them of the dangers to be anticipated from pur-

suing such a course ? Well, after hearing these reso-
lutions read in August, 1839, the House resolved, that
to bring such actions was a high contempt of the pri-
vileges, and the House resolved that by 120 to 4, and
on that minority there was not a single lawyer. Was it
not hard upon him, an unprofessional man, to he blamed
for adhering to a course thus unanimously adopted, and
not contradicted at the time by a single lawyer ? The
tendency of the Learned Sergeant's speed], ,eloquent as •
it bad been, was not to diminish, but to increase his
(Sir R. Peel's) apprehensions of what would he he'en
the consequence of submitting to the claims of the
Court of Law. The Learned Sergeant had censured
him for having—not disrespectfully—not, to use the
Learned Sergeant's own words, " kindly, even deli-
cately"—questioned
some opinions of the Judges.—
(Hear. hear.) Such, it seemed, was the paramount I
supremacy of the Courts of Law, that even on a matter
affecting the privileges of the House a Member might
not animadvert on their judgment.—( Hear, hear,
hear.) All that lie had dive was to quote
the opinion of Lord Denman, to which he had referred,
regarding necessity as the origin -of privilege ; and the
opinions of the other Learned Judges, to the effect that
though Members might, have papers piloted for their
own use, they dared net disclose anyeafitheir contents
on pain of
,an 'Milieu for libel. `And' then he had put
the case of the vote of 20,000,0001.,, and had C.xemined
how such 'a'deeis;On would work, showing that according
to the judgment of the Queen's 13er:ell,- tfhe had been
questioned by his constituents as to the ',grounds on
which he-had giVen that vote, he could not hayeziVCD
them those grounds as disclosed in the evidence whit:
had been presented to the House.—(Hear, hear.) Did
not the Court of Queen's Bench hold that for so doing
be would have been liable for libel, not only in that
Court, but in every Court competent to entertain' the
quest ion of libel ?—( Assent fromMr.SergeantTalfourd.)
Did not the Court hold that sale had nothing. to do
with the question in a legal point of view ?—(Anotheir as-
sent from the Learned Sergeant.) Well, then, "that
being so, did it not follow that when Parliament was

not sitting, if any Member communicated to his consti-
tuents evidence—for instance on slavery—he would 6)
liable to actions or indictments for libel in every Qtv.r-
ter Sessions and every Borough Court?—(Hear,
And would the Learned Sergeant say that sucl-, a stall
of things was consistent with what Lord De'llman caber
the energetic discharge of their functie'as ?—(Hear.)
Why, take the case of a Mr. Kenrick, a Judge, whose
conduct had been impeached—nr:inst whom evidence
had been heard —which was painted on the motion of
the then Sir Thomas Denman.—(Loud cheers.) Lord
Denman had the evidence in his possession. Lord
Denman received them not as a Peer of Parliament,
but as a Member of that House, and, his privilege in
that capacity having ceased, suppose Lord Denman

were now to communicate any part of that criminatory
evidence to persons inquiring on what grounds he had
proceeded against Mr. Kenrick, his Lordship, ac-
cording to the opposite doctrine, would be liable to au
action for libel.—(Hear.) Was there not ground, then.,
for saying that this privilege was essential to the due
discharge of their functions? These were points to
which he (Sir Robert) challenged a reply—points
which had never hitherto been answered.—(Cheers.,)
And if the Judges told him that as a Member of Par-

lament he could not circulate any criminatory matter
without being called in question—if that were OA law
—if that law were persisted in—he, for or.e, would
rather abdicate his functions as a Member of -Parliament

—he would not submit to perform the high duties of
legislation, if he could not explain h;.‘ conduct to his
11 constituents without being liable to question in every
Quarter Sessions. And yet s'..• it was. He held his I
adversaries to- the letter '.it" the law for which they I
contentled--(Hear, hes.l)—and he did believe that it
would be intinitely I.)etter, that there should be no I
popitlar assembly :Whatever as a part of the Constitu-
tion of the country, than that it should hai.e the Vain-
blance of powers of which it was absolutely deprived.
—(Cheers.) The question was, whether a publication
ordered by the Speaker of that House was privileged
or not. Would the Learned Sergeant deny that it
was? Would the Learned Sergeant sly it was only. ,
partially privileged ? Would he venture thus to sup- '
port the judgment of the Queen's Bench ? And he
(Sir R. Peel) had observed that not one single' lawyer
in that House had ventured to affirm, that if the pub-
lication for the use of Members were privileged, that -
the publication generally was not privileged ; and, if
sa, could the Learned Sergeant be surprised that the
House were unwilling to trust their privileges to the
Courts of Law ?—(Hear, hear, and loud cheers.)
These were the grounds on which he (Sir R. Peel)
had acted. It was easy to make an appeal to ale
feelings. He had admitted that the conduct of the
Sheriffs in their difficult situation was deserving of praise
but as the Learned Sergeant had spoken of humanity he
(Sir Robert) could not help stating that there could not
be a more dangerous doctrine than that because officers
were high in station—because they were honourable
character—because their personal demeanour to the
House had been becoming, that therefore no step}
should be taken against them in the ordinary way
enforce a concurrent jurisdiction.—( Hear, hear.) Rut
if an appeal to humanity and sympathy were to be. Ili-
lowed in favour of the Sheriffs, he could not avoid ;sa.-_,,in_
that there was much more ground for such an appe,al
behalfof Hansard before Lord Denman, for Hansa,. d migi I
justly have said that ha was only the mini.ste.,:ial officer
of a higher authority, and that it wa4 st,:ilting at
mice and allowing the larger ar,:ima), to escape--
(Hear, hear, and a laugh)—to fix upon him for censure.
There was a higher authority;
under whose direction I
(Mr. Hansard) acted, than the Court of Queen's Bencii,
I.'
to which he (Hansard), might have said, Don't drag an
unfortunate printer. within your power ;. he is but the
servant of the, -louse of Commons, to whose orders he
was oblipCt to pay obedience, therefore don't make me,
an butale individual, responsible, when you have the
real deliuquent tc attack—namely, the Speaker of the
House of Commons, and the House of Commons it-
, I self," Whet would the Chief Justice feel hitnielf at
liberty to do ? Did the House think that such an__aaPn-
F peal could have had tiny effect ? Or suppose that H
7_
► sard had presented a printed petition to that Csuon„urt.....
, I setting forth the grievances under which be was