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

was a right which only belong to the Legislature itself.
The jurisdiction of the Court of Chancery which had not
a constitutional power, differing from the power of the
Judges of the Courts of Law, could not be exercised with-
out asserting that right before a legal tribunal. Once re-
move that tribunal, and the power of the Court to
admister justice was gone—once prevent that House
from the exercise of its power, and it privileges
iseme gone, and it ceased to be useful. He thought
the Honourable and Learned Gentleman was called
upon, having assumed as he did the existence of a privilege
and the necessity of exercising it, to point out what course
was to be adopted ; having committed the Sheriffs, he said
they had next to proceed against the attorney. Now,
what was the practice of the Court of Chancery? It was
said they were interfering with the privileges of the House
and the right of the party to obtain the benefit of advocacy.
What did the Court of Chancery do in all proceedings in
which they stopped an action at law ? Could he refer to
higher authority than those who were listening to him
for confirmation, in saying it was the practice in cases
of disobedience that the party and the attorney stood
committed? lie eould refer to a multitude of cases to prove
that this was the practice of the Court ; and in one case,
which must be familiar to them, where a party against an
injunction proceeded against the bail, the Court of
Chancery were called upon, not to commit the party, but
the attorney ; and that was the ground on which the order
was made; he thought the Hon and Learned Member fell
into an error in) the case of Stockdale and Hansard, which
was necessary to be remembered by the House when they
came to deal with the attorney. The Hon. and Learned
Member (Mr. Pemberton) said nothing appeared in these
proceedings but that in an action for libel judgment had
gone by default, and that the question whether or not
the House had the privilege of publication had never been
submitted to their determination of a Court of Law, and
therefore they ought to submit to a legal tribunal. Did
the Hon. and Learned Member forget that in the first
action brought by Stockdale for this very publication, the
question was raised before Lord Denman, who then de-
livered the same opinion as when the question was argued
on demurrer, and directed the Jury that the fact of the
House of Commons having directed Messrs. Hansard to
publish was no justification of any publication containing
libellous matter. This was then established, every course
had been tried by which it was possible in this way to
assert their privileges. In the first place they bad gone to
a Court of Law and the Court had directed the Jury as he
ha] just read; it came again before the Court, which a
second time decided against the House of Commons.
Now what, then, was the Hon. and Learned Member's
meaning when he said they had not tried the question in
a Court of Law? How did that avail upon this quest-
tion ? Were they, or not, to surrender their privilege ?
No expedient remained but that adopted. Now how did
the case of the attorney stand ? He believed there was no
Hon. Member who did not deeply deplore the necessity of
raking these proceedings against Mr. Howard, but in what
other way was it possible to prevent the constant bringing
of such actions? It was said in the course of the argument
that Stockdale had but to bring his action, and that he
could go to France and laugh to scorn their authority.
Aed so he might ; but however actions might be corn-
.a ,nced, they could not be prosecuted without the instru-
mentality of attorneys, and if they published to the world
that whoever assisted in bringing actions in contempt of
the jurisdiction of the House of Commons should be pu-
eished, it would be an effectual bar to them. He
had been asked to point out an instance in
which the House of Commons interfered to pre-
vent actions, at the same time that an action so pre-
seated was pointed out to him. This he would say, that if
they once established the power of commitment for eon-
:zmpt of the privileges of the House—that its jurisdiction
Wes not examinable—and that it was armed with authority
to punish those who assisted therein, he would venture to
predict very few would be found to follow their example.
Was this upon the face of it a case in which a great de-
gree of tenderness should be exhibited towards the party
before the House? Stockdale had prosecuted the former
action as a pauper, therefore the attorney had not the
temptation of gain.--( Hear.) Did he, then, engage
in this proceeding to forward the object of Stockdale,
or as an experiment by which he might acquire
those damages which would accrue in the course
of the action ? Take, it another way : if he lent himself
to Stockdale as a voluntary agent in disobeying the
.rders of the House, ho thought it would hardly be said
they should stay proceedings against him in tenderness to
course adopted under a sense of professional obligation.
:le would not enter into the general discussion, he merely
yrished to point out that the Learned Gentleman (Mr.
Pemberton) in referring to the practice of the Court of
Chancery had misapplied the argument employed, and to
•ay, with Lord Eidon, in tha case cited, that these privi-
leges were committed to the House as trustees for the
public, and it was not at liberty to give them up.
Mr. Sergeant JACKSON begged to offer a few obser-
vations in answer to what had fallen from the Hon. and
Learned Gentleman who had just addressed the House,
aad who had asked the Hon. and Learned Member for
Ripon why he stopped where he did? He (Mr. Jack-
son) would ask the Hon. and Learned Member why he
;topped short—why he did not follow up the principle he
advocated—why did not he attack the Counsel ? The
reason was obvious, and it was the same reason that
prevented his attacking the Judges, and left him nothing
but to lay hold of the Attorney. To compare the prac-
.ice of the Court of Chancery with the present
proceedings of this House, between which there was not the
slightest analogy, was to call that precedent which did not
fiord the slightest example. He did not consider courage
persevering in a cause we were satisfied was wrong, and
iie maintained that to do a thing that was wrong never yet
made one thing right ; but they were told the course they
had taken was one of necessity. The argument of the Right
Hon. Baronet ( Sir R. Peel) was based on that assumption,
out he did not think that the case was by any means made
out. The Right Hon. Baronet on a former evening had
irked how he could justify himself to his constituents if
he was not armed with the power of circulating publication
under the authority of the House. He replied that no lawyer
in Westminster Hall would deny that a statement made by a
Member to his constituents of the evidence on which ho
had acted was a privileged communication. There were
two distinct propositions involved in this case—first, whe-
ther these matters were examinable in Courts of Law,
and, secondly, if they were, had the Court come to a right
conclusion ? The Court it was said might decide wrong, but
so they might in all cases that came before them ; then why
not go to the last resort? This, it was objected, was sub-
mitting their privileges to the House of Lords; but they
would net go to the House of Lords as a branch of the
Legislature, but as to the highest Court of Justice known
to the Constitution. The Right Hon. Baronet had also
said he had the decision of a large majority on a former
occasion, and that Hon. Members did not meet him
fairly, but the Right Honourable Baronet should
remember that on that occasion there was not
one practised lawyer in the House, save Sir Robert
Rolfe, and it was rather too much to expect mem-
bers of the bar should remain in town attending Par-
liament while it was doing nothing at all, but had
they been present, he was sure they would have
given the same opinion as they had now done.
Ile would say they ought not to go on. They were
wrong, and, without meaning to speak disrespectfully, he
verily believed that they now thought themselves they
were wrong.—( Cheers.) He contended they bad been
wrong from the beginning. They were not to wield their
privileges for the purposes of aggression, and ought never
to have adopted the resolutions except pro re nata. They
should never enter into abstract propositions. The first re-
solution was perhaps well founded. The House had the
power of publication—( Hear, hear)—he would not deny
that; but it was altogether another question to what ex-
tent that publication was advisable. He would contro-
vert the necessity of publication to all the world. He de-
nied that they had a right to set up a shop to sell
these publications. He would maintain the right of Mem-
bers to communicate to their constituents the proceedings
of that House.—( Cheers.) But if that right should be
questioned in a Court of Justice, the proper course would
be to bring in a Bill for the purpose of settling the law on
the subject. Was there any doubt that the House of Lords
would join in such a Bill ?—(Hear, hear.) Why the same
thing was necessary for the House of Lords, who must
also publish their proceedings. But this was a matter
open to abuse, and no publication made with a malicious
motive ought to be protected. That was the course which
the House ought to pursue to put an end to this matter, and
not to persevere in this conflict with the Courts of Law.
He should vote against the examination of the attorney.
Sir CHARLES GREY perceived from what had
fallen from the Hon. and Learned Member for Ripon, and
from the Hon. and Learned Sergeant, that at least they
were gaining ground as they proceeded. The anxiety dis-
played by the Hon. and Learned Member for Ripon, was
certainly very natural, as he believed that a work of that
Hon. and Learned Gentleman, in which he had displayed
great learning, research, and ingenuity, but in some por-
tions of which he had perhaps been unfortunately mistaken,
had exercised great influence in the decisions which had
been come to on this subject in Westminster Hall, and if
any doubt had since crept into his mind as to the justice of
the conclusions to which he had come, he must feel some
anxiety that the unfortunate consequences of those deci-
sionsshould if possible be avoided, even at the expense of
the privileges of that House. They might, if as was ad-
mitted by the Hon. and Learned Gentleman, one half of
the profession entertained doubts upon this snbject, resort
to the Judges and say--
" Si pergama dextris defender° posse,
Etiam ille defensoris fuisient."
He made inquiries after this work, but found that no
bookseller possessed it—it had vanished.—( A laugh.)
Now, unless some doubt had crept over his mind as to the
justice of some of the positions there laid down, be was
confident he would have reprinted it.
Sir E. SUGDEN—A new edition has just come out.
Loud laughter. )
Sir C. GREY hoped it was with considerable emenda-
tions, corrections, and qualifications.—( Roars of laughter.)
The Hon. and Learned Member had that night arguedupon the supposition that those privileges existed, which
in the outset had been so pointedly denied ; and the
Learned Sergeant had at last openly admitted that the
House possessed the right to publish its proceedings, for
the information of its constituents. It was impossible for
him to stop there, and deny their right of publication to all
their mansion under lock and key
the world. It was impossible for them to draw the line. Were
Members to keep these publication Why s in a secret cham
wberre of
if any per on eto
look through the key-hole of such a chamber it would re-
mind him of the blue chember in the story of Blue Beard.
( A laugh.) The
progress made in this part of the ques-
tion enabled him at once to dismiss that part of the argu-
ment, and the coaunittal of Stockdale naturally followed
as a consequence of that admission. ' A great effort had
been made to excite a feeling
of compassion for the
Sheriffs ; it had been said it was hard that they should be
amerced in their moneys Did it not occur to Hon.
Members who made use of this expression, that the
moneys in question were the produce of the sale of the
property of Messrs. Hansard, who were the servants of
that House ? The moneys were Messrs. Hansard's, and
when the Sheriff's admitted they had the money in their
possession, arid refused to give it up, ought they to be
permitted quietly to want out of the House with
the money in their pockets ? It had been argued that
the Court of Queen's Bench would commit them if they