The Sun.
London, England, 1840-02-04 00:00:00

SUNS LONDON. TUTI,SDAY, FEBRUARY 4,1940

iheriffs, but Fe. ( Sir R. lossis) considered that the jury
who had assessed the damages were more mixed up in the
transaction than the Sheriffs. The House, in his opinion.
might consistently punish Stockdaie, because he was the
prime moving party in the whole concern ; but they could
tot consistently further punish the Sheriffs, who had done
nothing more than by their orths they had sworn
o do. —(flear, hear. hear.) With respect to the power
of the House to punish, it was limited, in his opinion, to
a most injurious degree, because, if at a later period of
the Session a party committed a most grave offence,
the House had only the power to retain him in::prison
611 the end of the Session, while another party, who
had committed but a small offence at the commencement
of a Session, might be subjected to a much greater degree
of punishment. He thought that the bst course to
follow for establishing the privileges of the House would
have been to have brought in en Act of Parliament net
declaratory of the law, but a Bill enabling that and the
other House of Parliament to do that which was neces-
sary for the establishment of their privileges. The House
had not, however, taken that course; but they had in-
structed the Attorney-General to appear in the Court of
Queen's Bench to defend their privileges, and by that means
giving the Judges to understand that they were at liberty
to come to the conclusion that they thought right—that
they had the power of considering their privileges. He
was not aware whether there was any other instance on
record of a party having been committed for doing that
• which he was previously sworn to do. The case of the
Sheriffs was the only instance. He (Sir Robert Inglis)
was in the Court of Queen's Bench when the Sheriffs were
brought up on habeas corpns, and he heard the loud and
general shout outside which announced the approach of
the Sheriffs. That shout reminded him of the shout which
attended the acquittal of the seven Bishops.—( Laughter.)
Honourable Gentlemen who laughed at the shout that
attended the acquittal of the sever, Bishops, forgot very
much the elements of English history, and forgot how
much the civil liberties of the people of England depended
upon the courageous conduct of those martyrs of the
Church of England. The Sheriffs having now been fif
teen or sixteen days in close confinement, he trusted the
House would think its privileges had been vindicated, and
that the motion of his Hon. Friend would be acceded to.
Mr. BAINES had attended with very great attention
to all the discussions on this subject, and the result he had
come to was, that if the House should forfeit the claim it
now set up, it would in reality abrogate its powers, and
become inefficient for all the great purposss of legislation.
Hear, hear.) A great deal had been said about the
close confinment of the Sheriffs. There had been a per-
son confined, for an offence much less than that which the
Sheriffs were guilty of for thirteen months, not in a room
twelve feet by twelve but six by six, and who, for sixteen
hours out of twenty-four, was placed in solitary confine-
ment, having no levee every day to animate and console
him. When the Hon. Baronet's ( Sir R. Inglis) sympathy
had been so strongly excited in favour of the Sheriffs, it
was a matter of great surprise to him that he had not come
forward and expressed his regret that a person should have
been confined for so long a time for 53. Gd. It was said
the Sheriffs were confined because they had conscientious
scruples—so had John Thorogood conscientious scruples,
and yet he was to be left incarcerated in a gaol, dying
from starvation and misery. He (Mr. Baines) had been
informed that the Lord Chief Justice had been disse-
minating thoSe very publications for which Mr. Stockdale
brought his action.—(Cries of " Order, order.") He
was not out of order, and it was quite competent for him
to say, that, even on Saturday last, the Lord Chief
Justice had, in the generosity of his disposition, presented
a series of those reports to one of the Colleges in this
country. He did not see why the same process should
not be issued against the Lord Chief Justice that had
been issued against Messrs. Hansard. He did not
think the punishment of the Sheriffs had been sufficient to
expiate their crime, and, therefore, he could not vote for
their discharge.
Sir W. FOLLETT felt it incumbent upon him to say
a few words, especially after the speech of the Hon.
and Learned Attorney- General, which seemed to offer
no prospect of a termination to these proceedings. He
(Sir W. Follett) thought some course should be ariopted
by which that desirable object might be effected. He did
not at all venture to hope that any advice he could give
the House would be of the slightest service in its difficult
and embarrassing situation ; but he did feel the proceed-
ings had now come to such a point, that it was absolutely
incumbent on the House to consider calmly what course it
ought to take as it regarded the termination of these pro-
ceedings and the discharge of the Sheriffs; as to the future
course of proceeding in the actions now threatened
against the officers and the servants of the House, if it
should turn out on the result of these procedings that the
House had not the power effectually to stop actions brought
against its servants or officers, he did not think the House
would lose much either of its character or dignity if it
adopted some different course to that which it had hitherto
pursued.—( Cries of " Hear, hear.") As be bed not on
any former occasion troubled the House on this sub-

ject, he hoped he might be allowed to state the
view he entertained of the matter of privilege, and
the broad distinction which presented itself to his
mind between the power and right, which he believed the
House possessed, of communicating to the public the whole
or any part of its proceedings, and the power which they
had now attempted, and ineffectually exercised, to inter-
fere with the administration of justice. It was that ques-
tion alone which had led to these discussions. It was
the power of the House to publish its proceedings which
Mr. Stockdale questioned, and he did regret that any
other question than that of priVilege had ever been raised.
Although he himself was a Member of the Committee in
1837, when these resolutions were reported to
the House, which were so much the subjeet of
comment, he was not able to say ; the more
mature deliberation he had been able to give, made him
regret that those resolutions ever were reported in that
Committee, or ever received the sanction of the House.—
( Hear, hear, hear.) The assertion that the House made
relative to undefined privileges led people to test those
principles by putting imaginary cases. They tried it, not
by what the House was likely to do, but what it might do,
and the House was charged with arrogating to itself the
functions of the entire Legislature, and assuming the
power to make laws and not obey them.—( Hear, hear.)
He did not mean to say that those resolutions were liable
to that charge, but that misapprehension had gone abroad.
Upon the powers of the House to communicate to the
public. the whole or any part of its proceedings ho
owned he was perfectly satisfied by the precedent
collected by that Committee, that it was a
power which that House had exercised, and which
had never been questioned.—(Hear, hear.) It had

been the practice of that House, beyond all doubt, for two
centuries, to do so--( Hear, hear)—but, independently of
that fact, looking upon it as a mere Constitutional ques-
tion—looking at the power of that House as one of the
branches of the Supreme Legislature, and its functions as
the grand inquest of the nation, he, for one, could never

entertain a doubt of communicating to the people the
whole of its proccedingrs.—( Cheers.) It was not neces-
sary for him, after the speeches that had been delivered,
and especially after the speech of the Noble Lord opposite,
if he would allow him to point cut instances. It
could not be doubted that they might origi-
nate in that House a Bill to alter the suc-

cession to the Throne, and could it be said they were
not to publish the grounds on which they wished to absolve
the people from their oaths of allegiance?—( Ilear, hear.)
It was no answer to tell him that there was no trace of such
a power in the earlier periods of our history. In his mind
the power of the House, and the mode in which it would

exercise its functions, must vary with the altered state of
society, and with the degree of political knowledge; and
with the present state of society, and the present degree of
political knowledge, it did seem to him essential to the
due working or the Constitution of the country that the
people who were to be bound in their property by the laws
of Parliament should have an opportunity of knowing the
grounds upon which Parliament passed laws.—( Hear,
hear.) All the evidence taken before their Commit-
tees--all the Reports made by the House—all the grounds
on which they legislated, he thought the people ought to
be informed of, and if there did arise a feeliag against the
privileges contended for by the House, he was sure that if
the people were made to know that what the House claimed
was the right to communicate to them what was passing
in that House, they would be backed by the public voice.
-(Cheers.) It was idle to tell them that they might
publish what was not defamatory, but not what was. No
precaution would enable them them to publish that which
was defe;natory. Of what use, would have been a Commit-
tee on the Poor-laws, if they were not allowed to publish
the evidence ?.—( Hear, hear.) Although be agreed with
a Noble Lord ( Howick) that it would be much better if
more care were taken in the publication of evidence, yet
no care could prevent defamatory matter being published,
and if any one was appointed to overlook the reports, no
one in the House could say that even on this particular
subject, where the Commissioners had made a report, stat-
ing that there was an obscene book published by Mr.
Stockdale—nobody would have thought of striking,
out that passage.—( Hear, hear,) Looking at the proposi-
tion as a lawyer—not that this was a legal question
because this was not a question on which lawyers could
form any better opinion than any other person--( Hear,
hear)—it was a great constitutional question; but even
looking to it as a lawyer, with respect to the publication of
defamatory matter the propositions were, in truth, identical,
and if it were essential Jo the House to publish its pro.
ceedings, then any publication, no matter how defamatory,
made by order of that House, was a lawful proceeding.—
( Hear, hear.) He could not help feeling that the publi-
cations of that House ought not any longer to be the sub-
ject of an action. The case of the King and Tait had
frequently been alluded to; but in that case it was not a
publication by order of the House, but of a stranger
to the House, who had presented a petition defaming the
character of an individual.—( Hear.) But surely there
was a distinction between the acts of strangers and the
acts of the House itself. In the present case the publica-
tion was ordered by the House of Commons for the in-
formation of the public, and, as such, he did not con-
sider it otherwise than a lawful proceeding; and he
thought, that when the matter was discussed in any
Court of Justice, and when the party set up as a defence
that the publication was ordered by the House of Com-
mons, the Judges of the Court ought to have given
credit to that House for not being actuated by any impure
or improper motives.—(Cheers.) They ought to hare
given credit to that House, that in the publication,
by their order, they had no other object than the
public good.—(Loud cheers.) He regretted that the
Court of Queen's Bench had not come to a different de-
cision than that which they had pronounced. It was not
possible for him Sir W. Follett) to state too highly the re-
spect he felt for the character and learning of those Judges.
but at the same time, Hite could not, after all the delibera.
tion and inquiry he had given to this case, bring h:s mind
to go along with them in the grounds of that judgment, he
felt that when that judgment came to be canvassed in that
anddid
House he should be wanting to that House
Hon,
if he
nLoetarnsteadteFrhieirsido,pthineio An I. e—m(Zhefoerßeading
his
(Mr. Sergeant
Talfourd) would allow him to say so, he did not even think
that the Judges of that Court would be in the least dis-
pleased with any difference of opinion stated in that
House with respect to their judge-tent, or of the grounds of
that judgment being canvassed in the delicate manner in
which he admitted they were canvassed by his Right Hon.

Friend, the Member for Tamworth. They bed a right to
canvass the judg,rneire itself, as if they were canvassing it in a
Court of Appeal. The Judges would not be displeased
with it. A much bigiser authority than him, his Hon.
Friend the Member for Ripon (Sir E. Sugden), and his
Honourable Friend the Member for Liverpool (Me,
Cresswell) had expressed opinions that the judgment of
the Court was erroneous, but he must say he had
heard in the course of these debates, knowing so well as
be did the Learned Judges of that Court, and the high
position they occupied, not only in the opinion of the pro-
fession, but of toe had heard with pain some
of the observations made in the course of this debate.--
( Hear, hear.) He would say nothing further. There was
nothing which had excited so strong a feeling as the reso-
lution of the House to sell their papers. He knew that,
speaking legally, it made no difference as to the publica-
tion—( not
Hear, hear)—but that misapprehension was
confined alone to those who looked at the mere
surface of thinge, but to those who were highly
educated; and they would take their stand on this
position--" we do not deny to you the right to pub-
lish your proceedings, but we deny you the right
of allowing your servants to keep a shop for the sale of
these peblications." He should be very glad if a different
resolution were come to than that order of sale. Observe
the distinction there was between that power of privilege
and the power they were then seeking to enforce. It was
the practical position in which they were then standing
that had created all the difficulty. In the last Session of
Parliament, after the adverse decision come to by the
Court of Queen's Bench, that House came to the resolu-
tion in the case of Mr. Polack, to direct its officer not to
plead to the action, but to allow judgment to go by de-
fault That aetioa was not proceeded with. But in the
vacation the Speeker, acting on that resolution, directed
Mr. Hansard not to plead to the action that had been
brought by Mr. Stockdale. Judgment was taken by de-
fault, and hence all the consequences that had since
arisen. That resolution, no doubt, was carried by a large
majority, composed of all parties, and therefore he ad-
mitted that the Speaker had no other course but to give
the directions he did. It was hardly possible for the Noble
Lord or her Majesty's Government to take any other course;
he had been no party to their resolutions ; he had
not been able to attend in his place in Parliament, but
he could not bring himself to concur in them, nor in the
proceedings that had been consequent thereon. He
thought that the House would find that the power of come
rretinent was inadequate for the objects they had in view.
He hod seen from the reports, that the Noble Lord had
thro en on him his share of the responsibility, in having
advised the House to plead to the action of Mr. Hansard
in 1837. Ile had no hesitation in saying, that it was his
decided opinion, and that he had expressed that opinion
out of the House, to others as well as to Members, that
the House ought to allow its servant to appear and plead
to that action. That was the opinion he entertained im-
mediately after the resolutions of 1837 were passed. It
was the opinion be still entertained. The proceedings
that had taken place since the adverse opinion of the
Court of Queen's Bench, had in no degree shaken their
opinion, nor did he agree that the judgment of the Court
of Queen's Bench had placed that House in a worse con-
dition. If they had not pleaded to the action in 1837,
judgment would have gone by default, there would have
been execution, and just the same proceedings as
had now taken place would have followed. The
House might have attempted to evade the payment of
the money ; they would not succeed: they might have
imprisoned the Sheriffs; but, as far as regarded the fruits
of the action, their position would have been as it was at
present.—(hear, hear.) But, so far as his (Sir Wil-
liam's) judgment went—and he did not speak as a lawyer
merely, but constitutionally—so far as his judgment went,
he did not think the House had a right to order its ser-
vant not to plead to any action—( Hear, hear)—or to in-
terfere in the proceedings of the Courts below.—( Hear,
hear.) It was no doubt true that the House was the sole
and exclusive judge of its own privileges, and that it had
the power of committal for the breach of them.—( Hear,
hear.) But it did not follow, that if the servant of the
House was questioned for any act under the authority of
the House, that fact was at ones to operate to deprive the
Cours of Law of their jurisdiction over the case.--( Hear,
hear.) A plaintiff might have a right of action uncovered
by the Order of the House. (Hear, hear, hear.)
But if the House tried, after suffering judgment by
default, to stop the course of law, and attempt to
deprive a British subject of his undoubted right--( Hear,
hear)—let him illustrate this argument by what might
follow out of this very case. Stockdale would doubtless
bring his action against the'Sergeant-at- Arms, for the com-
mittal. What course would the House take? If the House
acted in consistency with its resolutions of 1837, it must
direct the Sergeant not to plead to the action.--(Hear,
hear.) Judgment, then, was suffered by default. A
Sheriff's Jury would be empanelled to assess damages, and
what amount did the House think would be given in such
a case ?—( Hear, hear.) And how would the House pre-
vent the plaintiff from receiving the fruits of his verdict ?
--( Hear, hear.) The house could not do it.—( Hear,
hear.) If out of session, it was admitted the Hould could
not do it. And even if in the session, what would the
House do? Imprison the plaintiff, imprison the attorney,
imprison the Counsel, imprison the Sheriffs—but the action
would still go on—( Hear, hear)—and in the end the
plaintiff would receive the fruits of his action.--( Hear,
hear.) It had been decidedly held that the general war-
rant of the House was a sufficient legal justifica-
fief. for a committal.--( Hear, hear.) But what right
had the House to deprive a person of any right
of action he might have over and above the abstract com-
mittal?—( Hear, hear.) That right of action might be,
that the Sergeant had used more force than necessary to
execute the warrant—(Hear, hear)—or that he had kept
the plaintiff in custody longer, to extort money.—( Hear,
hear.) Surely the plaintiff had a right to have his action
for that I Well, would judgment be suffered by default in
such actions? If not the House would not be acting con-
sistently with their resolutions.—( Hear, hear.) Decidedly
the House ought to do so—( Hear, hear)—and, unquestion-
ably, on the right of committal the Court must decide
against the plaintiff in the action. He (Sir William)
agreed with the Attorney-General, that the privileges of
this House, or of the other House of Parliament, or the
prerogatives of the Crown, were all part of the law of the
land—(Hear, hear)—and it was impossible to deny that
occasions must arise, on which each and every of those
subjects should come before the Courts for decision—
( Hear, hear)—and, if so,' surely they must bo decided as
all other questions that came before the Judges—on their
judgment, of course honestly and conscientiously.—( Hear,
hear.) Judges setting themselves up corruptly, or unconsti-
tutionally against either privilege or prerogative, might be
punished by impeachment—( Hear, hear)—but if their
judgment was honest and conscientious, it could only he
questioned by a writ of error.—(Hear, hear.) And he
could not feel the force of the argument adduced by some
Hon. Gentlemen opposite, that the effect of this would be
to place the privileges of this House under the decision of
the other branch of the Legislature. For, were riot every
day the most solemn questions of property, liberty, nay,
even of life, submitted to the other House, sitting as a
Judicial Court?—(Hear, hear.) When the prerogatives
of the Crown were at their highest pitch, the other House
had repeatedly decided upon them. And was it to be
said that the House of Lords were unable, then, to decide
on any point affecting the privileges of this House ?—( Hear,
hear.) The Attorney-General had said that the House
would lose its character unless it brought this matter
to something like a consistent consummation.—(Hear. )
But what end could the Attorney-General anticipate
of these proceedings ?—( Hear.) Unless the House
pleaded—or unless a legislative enactment was established
—fresh actions would continually be brought, and their
proceedings must be interminable. Let the House reflect
that they had already submitted to the Court of Queen's
Bench that most important of its powers—the privilege of
general commitment—on the return to the writ of habeas
corpus, which had been ordered by the house unadvisedly
by the Attorney-General ; indeed it was the only course.
He did think the House was too easily satisfied in suppos-
ing the Judges wore going to set themselves up against
the privileges of the House, aed he could not but also
think the House would have stood in a better position if'
the judgment had been questioned, and taken to another
Court. Was it aight, because in one act the Judges
had given an erroneous judgment, to set the
Conrts at defiance, and say that in no case in
which the privileges of the House were in question
they would permit the, Courts of Law to entertain it. Ho
said the House could not do it, and that the Constitution
never supposed that sort Of hostility between the Courts of
Law and the House of Commons—nor that the Courts
would decide against the law in -this matter more than in any
other. He would ask the Solicitor- General this question, no
person's opinion was entitled to greater weight—Was he
prepared to say that the House of Commons ought to in-
terfere and prevent the Courts from giving judgment on
matters affecting the privileges of the House ? Did he
say the Courts of Law ought not to entertain these
questions? If so, the course advised respecting
the return to the habeas corpus, was inconsistent.
Now he might say he had given no advice, and
that if he had been consulted he should have advised
shiide iiinbeociouosnroeseqofeenceof
traced it further? The subject now was a civil action—
' the officer not to make a return to that vrariti;.fe
wereßut had he.
b lost
• of the Speaker's warrant, what tribunal
the execution
the
egnhot
ntrhseerethbeey nhoadcrt
Com-
mons had no power to inquire. into a matter of
proceedingssn p
of the House
that description—it • the S 'Libre° Surely
or-
dinary triJuna ,
again distinctly brought before the
would therefore be
would investigate thamt ?ust
on the guilt or innocence of the persons
Judges, because
be bound to declare e
tee law to tuts I accused they would
also be bound to act on what was stated
Jury, who would lainkeinnal?
•1 Is and the privileges
be the law, and stated
byif what the Judges
by the Judges to
thought was the law as regarded the power of the House,
in cases on which life or death of the parties depended
was binding,
was it to be said the Judges had no juris •
diction in matters affecting the priviliges of the House?
The House would now exercise its power for purposes for
which it never was intended, and not effective ; for after
all what'were its powers ? That of punishment he admit-
ted, and-also of committal, but not of preventing actions.
It was clear if this matter had terminated in vacation
the House could not have interfered at all. They could
not have prevented it unless they had shut up all the
offices and Courts of Westminster, and sent the
attorney, who did not care about being in cus-
tody, to prison ; the Jury being empaneiled, the
verdict given, and the Sheriffs levying for the damages,
what course in this case would they have taken for the
Sheriff to pay the money to Messrs. Hansard ? But
he
refused to obey, and Stockdale had," not the money.
There was no question but he would have 4. If the She-
riff had obeyed the House he thought lie would be in a still
worse position, for what would have been the conse-
quence? The plaintiff would have brought his action
against the Sheriff, and they must have stopped that.
Suppose the action had not been brought, and the Sheriff
had been attached by the Court of Queen's Bench, and
sent to prison, what course would they have taken ? Ac-
cording to the Solicitor-General the House must send an
order to the keeper of Newgate to discharge him. But,
suppose he refused, then his Hon. and Learned Friend said
they would come at once into collision with the Court of
Queen's Bench, and one must give way. Ay, but which
one was to give way ? Why, said the Solicitor-