§ On the Motion that the House on its rising should adjourn till Monday,
Lord J. Russell
Before the hon. and learned Solicitor General proceeds to move the Order of the Day with respect to the question of Privilege, I think it proper that I should make some inquiry of him as to the course he means to pursue, and state what has occurred to me, and to some friends of mine, Members of the Committee. The hon. and learned Gentleman, in the name of the Committee, presented a Report, which consists, I may say, of two parts; the one with regard to the levy of the execution which will take place on Monday next, as to which the Committee thought it necessary that the House should interfere without delay; the other part stating that the Committee have come to a resolution that it is advisable to proceed by a writ of error in the superior court. It does not appear to me that the first part of the Report presented to the House has any other object than to enable the House, if they so think fit, to interpose to prevent the levy of the execution on Monday next. With respect to the second part, namely, the advice to proceed by a writ of error, the Committee state that they wish to make a more detailed Report to the House. While I think the Solicitor General was justified, being called upon, in proposing that the Report should be taken into consideration to-day, I must express a hope that he will not proceed to move any Resolution as to the writ of error. I think that this is due to the Committee, who after spending a good deal of time in deli- 1098 beration, made this Report to enable the House to take any steps they may think fit with regard to the execution on Monday. I think the House should take time till we meet again; and it will be for the advantage of the House in the matter of the writ of error, that we should have any detailed Report of information or argument which the Committee might make. My hon. and learned Friend the Member for Worcester, and my right hon. Friend the Member for Devonport, agreed that that course would be more desirable than that the Solicitor General should immediately propose, without further consideration, any Resolution to the House on this subject. I hope the hon. and learned Gentleman will consider this suggestion, and whether it be necessary to do anything more than move the postponement of the consideration of this Report to some future day, such as he shall think most convenient; which will allow any Member of the House who may differ from the Committee to propose any measure he may think necessary for the immediate interposition of the House to prevent the levy of damages on Monday next.
§ Sir R. Peel
I certainly think it was the impression of the Committee that it would be premature to call on the House to express an opinion on that important question, whether or no a writ of error should be moved for against the judgment. I think it would be very desirable that the House should have more notice before they affirm such a Motion; and also that the reasons which induced the Committee to come to that conclusion should be laid before us prior to taking any step which is not absolutely necessary. It was our duty to apprize the House of certain proceedings which might be taken possibly on Monday next, in order that the House might have the opportunity of interposing if they thought necessary. But with respect to whether they should interpose, I think it would be highly desirable not to come to that decision without further consideration.
§ Sir T. Wilde
It is choosing one evil less than the other, which is the only alternative. The House is placed in a situation in which it might either immediately determine or permit the plaintiff to levy his damages. It is certainly not desirable that the party should be permitted to levy damages until he obtains the full success of his suit. But the allowing damages to be levied, in no respect interferes with the complete validity of the writ 1099 of error for the reversal of the judgment; and if that reversal take place it will be a judgment of restoration, calling on the party to refund all he has gained. I dare say the House will not expect that that judgment, if it be ever pronounced, should be very productive; but it has struck me as a very important point for the House to consider, that the disadvantage of allowing the party to levy his damages bears no proportion to the disadvantage of a hasty decision upon this question. I think the writ of error a proceeding of so much importance, that the House should be put in possession of the reasons of the Committee bearing on that step. I hope I am not acting improperly in saying that I entirely dissent from the propriety of that course; but I think it of the utmost consequence that the Report of the Committee should be submitted to the House before the subject is discussed.
§ Mr. Roebuck
wished to ask his hon. and learned Friend this question. Suppose the money was levied by the execution, and no writ of error was brought, the House would be left without a shadow of remedy. If he understood his hon. and learned Friend, his opinion was, that as for their going into the Court of Queen's Bench, it was all very well, it was a mere service of notice; but if you had a writ of error in the Court of Exchequer, you admitted their jurisdiction, because you demanded a writ of error to say whether their judgment was wrong. So that he feared they would find themselves in this difficulty, that they would have allowed the officer to pay the money or to go prison, without remedy for the evil.
§ Sir T. Wilde
I will only notice what fell from my hon. and learned Friend with reference to the question of an immediate writ of error. It will be brought, of course, if the House determine it to be an expedient step to take, quite uninfluenced by the circumstance of the damages having been previously levied. The Act of Parliament, which recently passed to prevent writs of error being brought for purposes of delay, has enacted that no writ of error should be a stay of execution, except the party gives bail, undertaking to pay it if the judgment be affirmed; thus securing the plaintiff in recovering damages if it should be affirmed. A writ of error, unless, the judgment be stayed by express order of Court, on application made and came of error shown—has consequently 1100 ceased to be a stay of execution. But a writ of error for the purpose of impugning the validity of the judgment, is not affected by the levy of the execution. The only evil is, that it is for the time an apparent acquiescence on the part of the House; but when it is understood that that is not a direct acquiescence, but merely a forbearance to act until time can be gained to consider the matter further, no misapprehension can arise on that ground. My hon. and learned Friend was in error if he supposed that I wished the matter to pass without discussion, or without its being in some way or other brought under the consideration of the House. But if it be discussed now whether the writ of error shall be brought or not, the House will be involved in a lengthy discussion without having the reasons of the Committee before it.
§ Mr. Hume
Sir, I am very sorry to differ from my hon. and learned Friend below me as to the proper steps to be adopted in the present state of the question. This House has implicated its own privileges by making an appeal on that subject to a court of law, which I always was of opinion, and always asserted my opinion, is not competent to deal with our privileges in any shape whatsoever. The House is now getting deeper and deeper into a mess. I say that notice ought to be immediately given of the determination of this House to punish severely whoever shall attempt to arrest or to levy an execution upon our officer. In what does this proceeding originate, Sir? In nothing less than in your warrant, which I shall take leave to read:—
§ "Martii, 4 die Februarii, 1840.
Whereas the House of Commons have this day ordered that Thomas Burton Howard be sent for, in the custody of the Sergeant-at-Arms attending this House; these are therefore to require you to take into your custody the body of the said Thomas Burton Howard; and all Mayors, Bailiffs, Sheriffs, under Sheriffs, Constables, Headboroughs, and other Officers are hereby required to be aiding and assisting to you or your deputy in the execution thereof. For which this shall be your sufficient warrant. Given under my hand, this 4th day of February, 1840.
§ "CHARLES SHAW LEFEVRE, Speaker.
To the Sergeant-at-Arms attending the House of Commons.
§ Either this warrant is a legal document, or it is not. If it is a legal document—and I must be permitted to observe that it 1101 has been so considered and obeyed for ages, without its authority being disputed—how is it that we are not now prepared to support the authority of the right hon. Gentleman in the Chair? We have succumbed once before; and why, may I ask, are we now called upon to go deeper into the mire? The Report on the Table of the House says, that, at a future period, the Committee will present a more elaborate Report for the guidance of the House. Why has that not been already done? The Committee has been sitting a week, and what possible reason can there be for this further delay? So far from any delay having been suffered to take place in coming to a Resolution as to some Motion asserting our privileges, I hope the House will order any attempt that may be made to seize upon the property of the Sergeant, to be most severely punished forthwith. If any one will draw up a Resolution to that effect, I will move it, and, if necessary, I will assist in executing your warrant. It will not be the first time, Sir, that I have personally assisted in promoting the ends of justice. I was the first to seize upon the person who committed an act of murder within the precincts of this place—I allude to the person who shot the late Mr. Perceval—and I kept him fast until a magistrate was found to whose custody he was delivered. I conceive, Sir, that every Member of this House is bound to act in the same manner; and, as you are authorized to call upon all magistrates and persons in authority to assist in carrying your warrant into effect, so I think you have a prior claim upon the assistance of the Members of this House in enforcing and upholding your authority. I am not readily disposed to quarrel; but I consider this to be a good cause, and, if we do not take care, we shall suffer indelible disgrace; and I, therefore, ask my hon. and learned Friend to lead the way in proposing a Resolution vindicating your authority, Sir, and I will readily follow him.
§ Sir R. Inglis
begged to remind the hon. Member (Mr. Hume) that the question before them was, whether at its rising the House should adjourn until Monday next; and consequently the discussion was altogether irregular. The hon. Member had exhibited a considerable degree of warmth, and had shown a very praiseworthy readiness to vindicate by his own personal interference the authority of the 1102 Chair, and the privileges of the House—perhaps the hon. Member would even be so bold as to take the Lord Chief Justice into custody? [Mr. Hume: So I would, if he comes here.] Whatever course the hon. Member might be disposed to take, he would find ultimately that the House stood alone in its contest with the constituted authorities of the country, and that it claimed privileges which no other power in the kingdom ever pretended to assert; privileges which were utterly unknown to the Constitution, and incompatible with the liberties of England. He must, however, repeat the observation which he had made; namely, that the discussion was irregular under the present circumstances.
§ Viscount Howick
I think the hon. Baronet has not exactly understood the object of this discussion. If I understood my noble Friend the Member for London, he advised that the discussion on this subject should be postponed for the present, inasmuch as it was not necessary that there should be any discussion unless some Gentleman was prepared to move that some actual step should be taken towards resistance. My hon. and learned Friend near me, if I understood him, acquiesced in the proposal of postponing the discussion, not as the hon. Member for Montrose supposes, because he is prepared to depart from the course he formerly recommended, of requiring this House to defend its privileges, and not to trust to other tribunals, but to its own powers. Because, my hon. and learned Friend says, assuming that the House means to defend its privileges, we ought to have further time to consider what steps should be taken with that view. He sees the evil of allowing those damages to be actually paid; but he says it would be a less evil, and open to greater objections, to take any inconsiderate step. What I understand my hon. and learned Friend to say is this, that although we allow the damages in the first instance to be paid, still, if the House take his advice, excellent as I think it, and determine to maintain its privileges, it will be equally in our power to make the party who has received the damages refund what he has obtained, and punish all the parties who had assisted him in infringing the privileges of this House, as it is now to take those strong steps which may be necessary to 1103 resist the levy of the damages. My hon. and learned Friend says it is inexpedient that we should take those strong steps to resist the levy of the damages, unless we are prepared, having embarked in that contest, to go through with it. On a former occasion we made the great, and, I am afraid, the fatal mistake of embarking in a contest which we had not the nerve to carry out. My hon. and learned Friend wishes to avoid the repetition of that fatal mistake, and, therefore, he says to the House, I do not counsel you to abandon your privileges; I still remain of opinion that you have the power, and it is your duty to defend them; but seeing what passed before, I advise you to postpone discussion on the subject. We admit it is an evil to allow damages to be levied; but still it is a less evil than taking any inconsiderate step. Allow damages to be levied; wait till the Report of the Committee is before you; and having seen that Report, determine deliberately what is the course you ought to pursue. In my view, the advice of my hon. and learned Friend is the best and wisest; and I will, therefore, also press the Solicitor General not to make any specific Motion on the present occasion, but to allow the Report to be taken into consideration hereafter.
The Solicitor General
I entirely concur in the view that it is expedient we should postpone the consideration of this question until we have before us a full and complete Report from the Committee to which we have confided the task of considering the present question, and recommending the course which ought to be adopted. The hon. Member for Montrose has asked why there has not been a complete Report presented to the House. He says, we have had ample time—a week — to prepare our Report. Certainly, if we had the advantage of the industry and diligence of the hon. Member for Montrose we might, by possibility, have been able to frame that Report; but we had it not. He is not at all aware of the infinite pains and research which are requisite to be employed before we can present such a Report to the House as would be satisfactory either to the House or to the Members of the Committee. And this I must say, that in the midst of numerous other important claims on their time, the Members of the Committee have been most faithful and diligent in performing the duty cast upon them by the House, 1104 and have been as expeditious in their proceedings as was consistent with propriety, and with a regard to what the House would expect from them. Under these circumstances, I certainly agree with the suggestion made from the other side, and I shall not propose any Resolution to be taken on the Report of the Committee. If any hon. Member thinks proper to say that the time has now arrived when it is necessary for the House to come to a decision, and will make a definite proposition for resisting the levy of the damages, it will be competent for him to propose a Motion, and the House may decide in his favour. But, for my part, I shall accede to the suggestion offered, and when the Order of the Day is moved, I shall most certainly move its postponement to Monday week.
§ Sir T. Wilde
said, he wished only to say one word. He begged, hereafter, it might not be supposed that he had concurred in this recommendation of postponing the discussion, from an impression that there were no difficulties or objections in the way of permitting the execution of the levy. There were; but he said these were much less than in taking any inconsiderate step. The hon. Member for Montrose complained of the want of attention on the part of the Committee. Certainly, he could say that every hour the Committee sat they had had the benefit of his hon. and learned Friends the Solicitor General's attendance; and he would only say, for his own part, that he had allowed no private business to interfere with the duty of being present at its sittings.
§ Sir R. Peel
thought the hon. Member for Montrose very ungrateful to the hon. and learned Members, who, in addition to their other labours, had devoted three or four hours a day to the consideration of this important question, besides other researches out of the Committee. He thought the hon. Member for Montrose had very unfairly imputed to the hon. and learned Gentleman opposite (Sir T. Wilde) a desire to shrink from the vindication of those privileges, on recommending a Resolution which he was aware was attended with difficulties. The hon. and learned Gentleman had not refused the Committee his powerful assistance in vindicating the privileges of that House; he had given them the advantage of his extensive learning in their deliberations, and when a re- 1105 commendation was made from which he dissented, he made suggestions which might mitigate the evils he apprehended. He acknowledged with gratitude the value of the hon. and learned Gentleman's assistance.
§ Mr. C. W. Wynn
said, it was only due to the Committee to say that they applied themselves to the consideration of the subject before them at the earliest moment after they were furnished with the necessary papers. It was impossible for them to offer any opinion upon the question before them until they had the Speaker's warrant and the pleadings, together with the judgment of Court. They met at the earliest possible hour—12 o'clock—and sat up to the latest moment allowed for their proceedings. He did feel it due, in particular, to the hon. and learned Member for Worcester, to say, that he had not only shown great generalship in the mode of dealing with the question, but, also, that he had devoted a considerable portion of his time out of the hours of the Committee most usefully to promote its objects. He entirely concurred in the propriety of the course recommended to the House, namely, of not coming to a decision under the present circumstances of the case. But, at the same time, if any hon. Member thought that the House ought, before Monday, to come to some resolution to resist the levy threatened upon their officer, the present was the time for adopting that course. But, if the House should act otherwise, it would be probably the better course, as then the Committee would have had time to furnish them with a Report containing the precedents and other materials requisite to enable them to come to a right and becoming decision.
§ Mr. Hume
said, in explanation, that he was the last man in the House disposed to cast any blame upon the Committee, or upon his hon. and learned Friend below him; but the question had appeared to him to be of the simplest nature as regarded the privileges of the House, namely, whether they were prepared to defend or to abandon them? The hon. and learned Member for Worcester was, in particular, the very first man who advised the House not to take that course which they had since had so much reason to regret. His own mind, however, was made up. He only blamed the hon. and learned Member for having recourse to expediency, 1106 instead of meeting the difficulty boldly. He did not think the Committee were the best judges of the proper course to be taken, and therefore he should move, as an Amendment on the Question before the House, the following Resolution:—That the House will deem it a high breach of its Privileges on the part of any Person, who shall dare to levy Damages upon one of their servants for having obeyed the Speaker's Warrant.In taking this course, he begged to say, that he should be extremely sorry to be supposed to be doing anything which would not tend more to maintain the privileges of the House, than would be effected by again pleading to the action in the form of a writ of error.
§ The Speaker
suggested to the hon. Member the propriety of suffering the Motion before the House to be disposed of, and of bringing his Resolution forward as an Amendment upon the Motion, when the Order of the Day for considering the question of Privilege was read.
§ Motion agreed to.
§ House at its rising to adjourn until Monday.
§ On the Order of the Day being read for the further consideration of the Report of the Printed Papers Committee,
The Solicitor General
moved, that the further consideration of the Report be postponed until Monday week, June 9th.
§ Viscount Howick
said, that before the hon. Member for Montrose brought his Resolution forward, he would suggest to him the propriety of listening to the advice of the hon. and learned Member for Worcester. If the Resolution were put, and a division ensued, there were no hopes of its being carried. If there were, he would heartily join in it—no one sooner. But as it was not probable it would be agreed to, nothing but mischief would result from moving it.
§ Sir T. Wilde
said, that if the Resolution of the hon. Member was put and negatived, how could the House hereafter punish any persons for doing that which they deliberately refused to interfere in preventing from accomplishing?
§ Lord J. Manners
For the very reason assigned by the hon. and learned Member for Worcester, I hope the hon. Member for Montrose will persevere in pressing his Resolution to a division.
§ Mr. Hume
was perfectly well aware that there existed in that House a party 1107 whose wish was to destroy all their ancient privileges; but the time was come at which they must interfere to vindicate those privileges; and therefore, in conformity to his determination, he begged to move as an Amendment on the Motion before the House the following Resolution:—That this House, adverting to the Resolutions heretofore passed, resolve that they will deem all Persons guilty of a Breach of its Privileges who shall act in the levying any Execution upon the Judgment which has been obtained in the Cause of 'Howard against Gossett,' referred to in the Report presented to this House yesterday.
§ Mr. Blewitt
said, there were two ways of proceeding in the case, one by sending the Officer of the House with a proper authority to notify the consequences of further proceedings to the parties, the other by issuing a warrant from the Chair for the apprehension of all who should venture to take any measures against their office.
§ Viscount Howick
still remained of opinion that it was of such extreme importance that the House should not pronounce any opinion upon the question at present, that he begged leave to move that the debate be adjourned to Monday week.
§ The question of Adjournment having been put,
§ Sir R. Peel
said, that until the noble Lord's Amendment were decided, they could come to no decision upon the real question. It was not competent for them to move the previous question upon that Amendment. The question put was, that the words proposed to be left out stand part of the question. If that were affirmed, they would be in the same position as if the question were put upon the hon. Gentleman's Motion. The effect of the hon. Gentleman's Motion, and the noble Lord's Amendment, would therefore be the same.
§ Mr. Labouchere
agreed with the right hon. Baronet that, technically speaking, there was no distinct difference between them; but (said the hon. Gentleman) regarding the impression upon the public there will be a difference, and to that impression I attach great importance. Those, who, with me, are anxious to maintain the privileges of this House, have already suffered extremely in the struggle by misapprehension on the part of the pub-. 1108 lic. There would on t hat account, I conceive, be a serious danger to the public generally, if we refused to agree to the Motion of the hon. Member for Montrose; and I, for one, am not prepared to agree to it. If we negative it, the public generally will feel that the majority of this House refuse to assert that those who are concerned in these proceedings against the Sergeant-at-Arms are guilty of a gross and flagrant breach of the privileges of this House; and yet, I apprehend, that the majority of the House are still of opinion that by those proceedings all our privileges have been invaded. [Mr. Roebuck: Hear.] I know that by that cheer the hon. Gentleman means to say that this is the time to defend them. I am as anxious as any one that they should be defended and protected; but if you wish to conduct the contest to a successful issue, you must engage in it with circumspection, as well as act with firmness when in it. It should not be lightly entered into, and when entered into not lightly departed from. I merely wished to state my reason for considering that, circumstanced as the House now is in reference to the whole case, it is not advisable at the present moment to come to a decision upon the Motion of the hon. Member for Montrose; lest, by doing so in the negative, an impression might be created upon the public that the majority of this House are not prepared to adhere to the opinion, that the conduct of the Courts of Law in the case is at variance with the essential privileges of this House.
§ Sir R. Inglis
said: Although no one can differ upon this question more widely than I do from the hon. Mover and Seconder of the Motion, I nevertheless feel myself bound to say, that I consider the present the only time when they, and those hon. Gentlemen who think with them, can act consistently with the opinions which they entertain upon the subject. If they do not take the sense of the House now, but wait for three days to elapse, when the act of which they complain shall have been perfected, it is idle for them to talk of opposing it. I do not hold, with my right hon. Friend who last addressed the House, that its privileges have been violated; but those who do so contend ought not to shrink from the maintenance of those privileges, but follow the course proposed by the hon. Mover and Seconder of the Motion. I differ from them, and am prepared to oppose the Motion; but with all respect I must say, that they, and 1109 all other maintained of the high prerogative of this House, will stultify themselves if they allow a verdict to pass against them without an effort in the exercise of what they conceive to be their legitimate functions to avert it. If they suffer the writ to be executed on next Monday, it will be idle for them on the Monday following, when the cause of action shall have ceased, to come down to this House, and show themselves grandiloquent and courageous. It will be mere verbiage on the 9th of June to talk of what they ought to have done on the 30th of May. If you wish to commence a warfare against the law authorities of England, now is your time. If the sentence of the House is to be pronounced upon this subject at all—a step which I deprecate, I must, in justice to those who think differently from me, say, that this is the time for it; and not ten days hence, when the act complained of will have been completed.
§ Mr. Roebuck
I will not, Sir, be led away from my purpose by the "prudent course which the right hon. Gentleman (Mr. Labouchere) has advised. I am not influenced by that advice, but I am influenced by the state of the case; and when he says that we are about to come to a hasty decision, I would ask him how often has this question been discussed? Is there, Sir, a human being in the country, or a Member of this House, who has at all thought upon the question, that has not already considered it from beginning to end, and is as well prepared to-night to come to a decision upon it as he could be on Monday, with the assistance of the "learned" Report of the Committee? Sir, this question goes deeper than at first appears. The hon. Baronet opposite, and noble and right hon. Gentlemen on the same side, oppose the privileges of this House—and why? So long as this House was merely the representative of a small portion of the aristocracy, no one stood up for its privileges more eagerly than the high Tory party; but the moment we come to represent the people, or to be something like a representation of the people—the noble Lord (Lord J. Manners) shrugs his shoulders—of course nothing is more contemptible than the representation of the people—but the moment this House comes to represent the people, that moment are its privileges decried. I say, then, now is the time to uphold them. 1110 I am prepared to pit this House against the Court of Queen's Bench. From its earliest existence to the present day, the Court of Queen's Bench has been the supporter of all that is bad, tyrannical, and despotic in the government of this country. [Dissent.] I am borne out in saying so by the history of the country. Looking back to the time of Hampden, when a cringing and unprincipled Judge wished to satisfy the despotic view of the Government of the day, who stood out for the liberties of the country? This House. The hon. Baronet the Member for the University of Oxford is just the man I should expect to oppose the privileges of this House now; but would he do so if Jack Wilkes were in the case? No, he would then be the first to maintain them. With the changes from an aristocratic to a popular representation, came this system of constantly decrying the House of Commons. We feel and understand, and the people out of doors will feel and understand, that that means a decrying of the representation of the Commons of England. You are prepared to pit us—I do not speak of myself—but you are prepared to pit this great body, representing the commonalty of the country, against the smallest, paltriest authority—you would have us, in obedience to the rule of every petty court in the country, having a prescriptive right, to "'bate our breath with whispered humbleness." The Court of Queen's Bench can bow to the Royal Court of Jersey; but let the Representatives of England say that a person shall be brought to the Bar of this House in the custody of the officer of the House, and the Court of Queen's Bench rises in all its majesty, and demands to know who are the House of Commons? The Royal Court of Jersey is a constituted authority; but the House of Commons nothing—nobody. I would ask, in return, what business the Queen's Bench has to interfere with your jurisdiction? It was plainly stated to that Court that this high and superior Court chose to bring the plaintiff in the action to the Bar, by an order given in all its form of expression through its officer, the Speaker, to its second officer, the Sergeant-at-Arms. The Queen's Bench says, "We are not aware of that, and must know why the House of Commons so decided." I say the House will demean itself, and forfeit all those privileges it is entitled to as the representa- 1111 tive body of the kingdom, if it yield to that demand. I am prepared to carry this matter out. I cannot suppose that the Queen's Bench will send its Chief Justice to levy this penalty; but whether it levy it or not, you should bring him to the Bar of this House. If you do not, your privilege is gone. Suppose the times altered, and that there should be upon the Bench some Judge desirous of carrying out the despotic propositions of a despotic Sovereign? Suppose the House of Commons to come into collision with that Chief Justice—see in what an abject position it will be if you fail to maintain your privilege on this occasion. We all know the value of a precedent in this country. [An hon. Member: The Chief Justice is a Peer.] I am not speaking of Lord Denman; I am speaking of the Court of Queen's Bench. If the Chief Justice should even happen to be a Peer, we have a way of coming at Peers just as well. Let the hon. Gentleman get himself made a Peer, then commit a breach of privilege against this House, and I shall soon show him how he is to be got at. But if we yield in this, we yield in everything; and so far I differ from my hon. and learned Friend the Member for Worcester, although I believe he goes with me in all the other opinions I have expressed upon the subject. But, supposing we bow to this decision, and suffer the writ to be executed, and supposing the Sergeant-at-Arms to have no domicile and no goods to levy upon, then they take his person. I do not go so far as to suppose that they would come here to arrest him; but he was liable on his way to this House to be seized by the catchpole of the Queen's Bench and taken to prison, in spite of the orders of this House, and in spite of your protection, Sir, and that mysterious instrument, the mace. The officer of the House of Commons, of the representative body of the people of England, for having acted in obedience to the commands of that House, is taken to prison—he is gone, and with him your honour and your power, for you thereby confess your inability to defend your own servant when acting in obedience to commands which he would not have dared to refuse to excute. Well, the Queen's Bench seizes him by the neck, and takes him to prison. What follows? The Solicitor-General then comes down to this House 1112 in great amazement to know what we shall do. I should like to see the face of the hon. and learned Gentleman on such an occasion. He would, no doubt, call upon us to wait until Monday week, and beg of us, for God's sake, not to proceed hastily. But according to the supposed case I have put—and I have a right to suppose it—your officer is all the while in prison; this House is degraded, not only in the eyes of the country, but of Europe, and, having lost its privileges, sunk to the condition of a secondary court. We should not then be the same House of Commons as in olden days, when we ruled everybody; ["Hear, hear!"] ay, and we ought to rule everybody. I see by the face of the hon. Member for the University of Oxford, that if it were the case of Ashby or of John Wilkes, the House of Commons would then be regarded by him as the great bulwark of the liberties of England; but being constituted now of the Representatives of the people, and not of a fraction of the aristocracy, he is prepared to place its privileges at the mercy of the Queen's Bench; a Court which owes its existence to a Royal breath. I know well the education of a lawyer. I know well their past history, and I must protest against their being put up against the House of Commons, when the House of Commons has become the Representatives of the people. It is on these grounds that I stand at once in the breach. I say now is the time for action. If you do not act now, your case is at an end, your power is gone, and you are no longer what you pretend to be, the Representatives of the commonalty of England.
§ Sir J. Hanmer
said, that if they were at the beginning of the question he should be more disposed to agree to the course recommended by the hon. and learned Gentleman; but after the steps already taken, he thought it behoved them to act with great caution and deliberation. He should therefore vote for the adjournment of the debate.
§ Mr. Warburton
said, if he could anti-pate from the Report of the Committee that the Committee would ultimately recommend that resistance which the hon. and learned Gentleman the Member for Worcester on a former occasion had so ably recommended, and which he thought the Committee ought to recommend, he 1113 would then accede to the proposal of the hon. and learned Member for Abingdon. He only said these few words to justify the vote he was about to give.
§ Mr. Disraeli
Sir, the hon. and learned Member for Bath has said, that hon. Members on this side of the House are opposed to the alleged privileges of this House, because its Members are now the Representatives of the people of this country; and then, with extreme inconsistency, he asks where would public liberty have been if Hampden had not risen in this House to vindicate its privileges? Why, Sir, the House of Commons of those days was as aristocratic an assembly as any which existed before its late reform. The House of Commons of the time of Hampden was not then elected by a constituency greater or more numerous than it was before the more recent reform of this House; and I cannot understand how the hon. Gentleman can impute to hon. Gentlemen on these benches that they would have wrongly vindicated the privileges of the House of Commons when it was aristocratic and before the recent changes, and then appeal to the name of Hampden as elucidating the great importance of vindicating the privileges of Parliament. Sir, there may have been times when judges were corrupt, and the hon. and learned Member is the last man to deny that there have been times when Parliaments were corrupt; there may have been times when judges were tyrannical, but the hon. and learned Member will scarcely dissent from the assertion that there have been Parliaments which have been tyrannical also. The hon. Gentleman says, that the privileges of this House ought to be defended, because they carry with them the sympathy and the affections of the people of this country; but let the hon. Gentleman see the Chief Justice of the Court of Queen's Bench committed to the Tower, and he will soon be able to discover whom the affections and the sympathies of the people of England do indeed rally. Sir, the difference between the privileges of Parliament and the privileges of the House of Commons has been often shown; and the people of this country do discriminate between Parliamentary privilege and the alleged privileges of one branch of the Legislature. I need not, upon the present occasion, advert to the instances in which the House of Commons, at different periods of its history, has exercised its power; 1114 sure I am that the hon. Gentleman can bring forward no case of corruption or of tyranny on the part of the Court of Queen's Bench which will not find a parallel in the tyranny and injustice of the House of Commons. But, Sir, these are not the considerations which ought to influence our decision upon the present occasion. The hon. Gentleman, however, has intimated that Gentlemen on this side of the House are opposed to the privileges of the House of Commons, because this House is now the representative of the people; while he admits, at the same time, that the exercise of these privileges, in the most aristocratic period of this assembly, has ever been the bulwark of the liberties of the country. I agree with the hon. and learned Gentleman in one of his statements. I agree with him, that the opportunity has arrived, and, I believe, the last opportunity, for trying the great issue which we have so long evaded. I do not understand how any one Member of this House, whatever his opinions on the main question may be, can say, that he has not had the requisite time for consideration; and yet hon. Gentlemen speak of this question as having come suddenly upon us, as a falling star, amidst the serene atmosphere of Parliamentary discussions—as a comet, the course of which has not been ascertained, and the arrival of which has been quite unexpected. Why, Sir, ever since I have had a seat in this House, now for some eight years, the subject has been at intervals before us, and upon every occasion you have evaded a definite conclusion. The system of procrastination, and of avoiding the difficulty, has been invariably pursued; but, though you have postponed the evil day, you have been now brought to that extreme point which has been always foreseen, and which cannot now be avoided. It is impossible to say, after the judgment of the Court of Queen's Bench shall have been vindicated under circumstances the most ignominious to this House—it will be impossible to pretend that the opportunity will still remain of trying the justice or propriety of that judgment; and when the right hon. Gentleman the Member for Taunton (Mr. Labouchere) enforces the advice he has given us, by a deference to public opinion, I will only ask what that public opinion will be after the judgment of the Court of Queen's Bench has been vindicated upon the property and the 1115 person of the Sergeant-at-Arms? The people will not make these subtle distinctions. They will see that an injured subject of the Crown has appealed to the Courts of Law; that the Courts of Law have vindicated his rights; and that, although there have been ostentatious declarations against him and the Courts, he has succeeded; and the right of the man himself will be inferred from this termination. For myself, Sir, I believe, that these alleged privileges of the House of Commons are not necessary; on the contrary, I believe that they are injurious to the liberties of the people, and I shall not deplore the result which the hon. Gentleman anticipates. I find that the advocates of these privileges always evade a definition of them. Do they mean that the House possesses and can execute an unlimited and irresponsible power? If we adopt the dogma of the hon. Gentleman, we must declare that there is a supreme power centered in this House. Is that your view of the Constitution of this country? Is that your view of what will be acceptable to the people of this country? For myself, I do not see any wish on the part of this country to have a supreme and irresponsible power exercised by this House; and I do not see the desire increased on the part of the public to see this House exercise any more extended power since that reconstruction and reform which, according to the hon. Gentleman, has made us the Representatives of the great body of the people. Every time a contest has been threatened, even in a partial manner, the public sympathy has been rather with those who have appealed from the House of Commons to the tribunals of the country. These feelings and these sentiments do not exist, as the hon. Member for Bath alleges, because those who take an opposite course in this House are the Representatives of the great body of the people; but they arise from an inherent and profound sentiment among the great body of the people of this country in favour of maintaining the majesty of the law of England. The people may have suffered from corrupt and tyrannical Judges; but they cannot forget that they have also suffered from corrupt and tyrannical Parliaments. I do not believe that they enter into any minute considerations of the whole question; they do not enter into any great historical research, but they associate this question with that administration of the 1116 law in this country for the last century and a half which has made the law the best security for public liberty. These I believe to be the sentiments out of doors; and I only rose to repudiate, on the part of those who sit on these benches, the notion that in the opposition we offer to this alleged privilege of the House of Commons, we wish to oppose the popular sentiment, or the exercise of a privilege which is in accordance with popular feelings. The hon. Gentleman has supposed the case of corrupt Judges, and of the Court of Queen's Bench presided over by persons desirous of subverting public liberty; but I may suppose a Parliament—not such a Parliament as we now know, free from faction, and where no party bias prevails—but I may suppose a Parliament in which the state of parties may be very different from what it now is—a Parliament which may choose to wield this supreme and irresponsible authority in the most objectionable and tyrannical manner. I have a right to suppose such a case as a parallel to that of the hon. Member for Bath; but we ought not to decide this question on either supposition. The real question for Parliament to decide is, whether the House of Commons shall exercise supreme and irresponsible power, or whether the majesty of the law of England, as explained by the Judges of the land, shall be upheld as paramount.
§ Mr. Fitz Roy Kelly
reminded the noble Lord the Member for Sunderland that the course which his hon. and learned Friend the Solicitor General had proposed, was adopted at the express suggestion of the noble Lord the Member for the city of London. That suggestion for a postponement had been acceded to, and then came the Amendment of the hon. Member for Montrose; and following that the proposal of the noble Lord to adjourn the discussion until Monday week. He must call back the attention of the House to the position of this question. The origin was, that a subject of this realm, Mr. Howard, had commenced an action against the Sergeant-at-Arms. It was then open to the House of Commons to take whatever course it thought best to vindicate its privileges; but, with all the information before them, the House had deliberately authorized the Sergeant-at-Arms to appear and plead to the action; and the consequence was, that they submitted to the Queen's Bench the question whether the act of their officer 1117 was lawful or not? That mainly depended on the question whether the warrant on which a subject of the realm was imprisoned was legal or not? The question was most ably argued by his hon. and learned Friend the Solicitor General; and the judgment of the Court had been against the act of their officer. It became, then, a question of transcendent importance to determine what course they should pursue, that due respect might be manifested for the law of the country on the one hand, and that, on the other, the undoubted privileges of the House should be vindicated. This question could not, without injustice, be discussed prematurely, nor decided till after long deliberation and much consideration. It had therefore been referred by the House to a Committee; and it was necessary, for the interests and the dignity of the House, that it should be postponed. They would even enter upon it now at a disadvantage. His hon. and learned Friend the Member for Worcester had conclusively shown that no real mischief could arise from the delay. If they determined to bring a writ of error, it might be as effectually brought on Monday week as at present. The worst that could happen would be that the money would be paid. If they appealed to the Exchequer Chamber, and it might be to the House of Lords, and if the judgment of the Court of Queen's Bench were reversed, they might recover back the money. There was no suggestion that Mr. Howard would be unable to pay the money; but, even if he were unable, of what importance would it be to the House of Commons, or to the people of this country? They would have vindicated their privileges.
§ Sir T. Wilde
Sir, I own that I entertain no doubt of the propriety of the advice I offered the House before I heard the speech of my hon. and learned Friend; but if I had hesitated, the speech of my hon. and learned Friend, and the part he has taken on this subject, would have led me to doubt, upon this occasion, the wisdom of the advice I have offered. My hon. and learned Friend has said, that when it was communicated to this House that an action had been commenced, it was put deliberately to this House whether they should appear and plead. I know not whether he was in the House at that time; but if he were, he would have heard on the part of those who advised the House to that course, a statement that, by appearing and 1118 pleading, they would not submit the privileges of the House of Commons to the Court of Queen's Bench. It was stated that the House could plead consistently with its privileges; that it had only to come to the Court of Queen's Bench and say that their officer did this by their warrant, and it would be sufficient. On that advice, against all caution—against the caution of the right hon. Baronet, who asked, "Who will undertake that the Court of Qneen's Bench will not criticise our warrant?"—against that wholesome caution, against that sagacious prophecy, the House did agree to plead. The House did it on the assurance that it would not do what the hon. and learned Gentleman now says it has done; and that is the reason why we are now so greatly embarrassed. The vote was come to against my protest, but on that assurance the House pleaded; and when my hon. and learned Friend says, "Let the execution be levied," I cannot but believe that my hon. Friend was absent from the division on the former occasion. If he were not absent, we might have expected that, as a Member of this House, and as a friend of the Constitution of the country, his aid might have been afforded in disabusing the House of the error into which it has fallen from following the advice of those who said that by pleading we should not submit our privileges to the judgment of the Court. I regret that, from the beginning to the end of this case, the House has not had the advantage of the talent and of the great ability of my hon. and learned Friend. I say it respectfully; but he has withdrawn from this House the protection of his talent and his learning; and I mention this because the House ought to be cautious in listening to his advice. It happened, when the Sheriffs were in custody, that I was sent for to the Bar of the House; and Mr. Under Sheriff France told me that they were prepared to submit themselves to the House, and asked what they should do. I declined to give any advice till they should fully have considered these matters, and till they had fully made up their minds to submit. Mr. France said that they had done so, and would therefore be obliged to me to tell them the best way of proceeding. I retired for a short time, and prepared a petition with a view to their submission and release; and when I returned I learned, according to their statement and impression, that my hon. and learned Friend had advised them not to submit. The House 1119 will be cautious in the reception of any thing I may urge, because I have taken so strong a view on this subject; and I do hope that it will be equally cautious in listening to the advice of my hon. and learned Friend, who has taken as warm, if not a warmer part, and who has the merit of having been the voluntary counsel for arguing this question against the House of Commons. Therefore, my hon. and learned Friend and myself are at opposite sides; and the House will hear us alike with great caution. I differ from my hon. Friend in regard to now proposing his Resolution; but if he could carry it, I would support him to the utmost of my power. Whether it is judicious to bring it forward as to time is another matter. I know very well that the House was told they are not to commit their privilege by appearing and pleading, and that afterwards they were told, you have, by doing so, put yourselves in the Court of Queen's Bench, and ought not to complain of its decision: and if the decision had been in your favour, you would have been content, and treated the Queen's Bench as a great constitutional Court; but because the decision is against you, you object to it, and seek to exercise your own powers. We ought to stop the levy of the execution—that is a step we ought to prevent. I deprecate above all things the bringing of the writ of error; but I admit that it would be a sad step to allow the levy of the execution. I know but one worse; and that is, that the House should now by a Resolution, either negative or affirmative, go back to proceedings already taken. I think, with the hon. Member for the University of Oxford, that this is the last occasion, in all probability, when you can discuss this question with anything like advantage to it as it now exists. I congratulate myself upon the belief that when a great occasion arises, when the House is intercepted in the exercise of its proper functions, it will cut through, as through a cobweb, all you have done—I beg pardon for saying so—to degrade the House, and to destroy its authority and public usefulness. It is a surrender of the constitutional authority of this House, and with that its usefulness, with that its place in the Constitution; and it deprives the people of England of advantages for which they can receive no compensation. If the hon. Member for Montrose had a chance of carrying his Motion, I would support it and vote with him; but I lament very much that the chances are 1120 that he will be put in a minority. At the same time do not let the House think that no evil would arise from the levying of the execution; the evils of such a course may be great, but they would not be productive of half the evils of the Motion of the hon. Member being put and negatived. I trust that I should be able to convince many hon. Members that the judgment of the Court of Queen's Bench, if that were the Motion, is erroneous in every part, and that the puerile criticisms on the warrant of this House are entitled to no respect. I believe the warrant good beyond the severest criticism that could be applied to it; and that the test applied, namely, that it ought to be judged by certain rules laid down in the lowest Courts of Common Law as to magistrates' warrants, is wholly insupportable, and highly derogatory to the dignity and usefulness of this House. It is contrary to law. There is a barrier to every law. Parliamentary Law is regulated by Parliamentary Law, and not by Common Law. I care not whether there were a few more words or less in the warrant than in former warrants; no man could read it without discovering the intention of it upon the face of it. It was, that the party was ordered into custody, and that the Sergeant-at-Arms was to take him—whither? To the place to which he was sent for to come. I will not go into that now. I think the Queen's Bench is decidedly wrong in the test it applied to this warrant, as to whether it was good or bad. The question to be put to that Court is, Have you a right to examine and pronounce upon the warrant or not? Would you examine a process of the Court of Common Pleas? You would not. Neither could the Court of Common Pleas examine yours. Above all, a Parliamentary process is to be judged of by Parliamentary rules, and they are not rules judicially known to the Common Law Courts; it is wholly out of their jurisdiction. But they have greatly erred in the judgment they have pronounced, not only in presuming to apply the test they have, but in the application of that test. I trust that, unless my hon. Friend sees some chance of carrying his Motion, (which, if he does carry, he will be the best friend England has had for some time, and I should rejoice in it;) but unless he should succeed he will only add something like an affirmance or assent to the levying of the execution, which will hereafter be productive of the greatest inconvenience; although my hon. and learned 1121 Friend sees no evil likely to result from, the levying of the execution.
§ Mr. Fitz Roy Kelly
, in explanation, said that with respect to the opinion he had given as to the question, Whether the Sheriffs were to submit to the House of Commons, and refuse to execute the writ? His answer was, that if the Sheriffs, whether under the protection of the House of Commons or not, refused to execute any writ emanating from the Court of Queen's Bench, they would be liable to an attachment, and to remain in prison until they executed the writ. He denied that he had volunteered as a Counsel in the case; he had received a retainer just as he might in any other case, and had argued the question according to his opinion of the law; but he came into that House perfectly free to form an independent opinion, and to do his duty as a Member of that House; and he hoped he should do so until the question had ceased to exist.
§ Mr. David Dundas
thought his hon. and learned Friend (Mr. Kelly) attributed more to himself than he was entitled to assume. He did not think it possible that any Gentleman could take a retaining fee for the advocacy of a particular view of a case, and then come into that House and declare that he was at liberty to do his duty as a free and independent Member of Parliament. He (Mr. Dundas) had the honour of being a member of the Bar, and he was prepared to say that no member of the Bar, being a Member of Parliament, ought to take a brief to support any cause that was in contravention of the privileges of that House. One to whom the House had a right to look for his distinguished services in support of its privileges ought to have been, on that very account, the last to take up a position which rendered it impossible for him to give his good services as a Member of Parliament to the upholding of those privileges. These were his (Mr. Dundas's) private sentiments, and he knew that they were shared in by many. He rose principally to meet the observation of the hon. and learned Gentleman, who said that he was free to give his best opinion upon this subject, uninfluenced by any circumstance, and to say that in his (Mr. Dundas's) judgment the advice of the hon. and learned Gentleman was neither safe for the House to receive, any more than it was fair for him to give. It was said that by allowing an appearance, and a plead- 1122 ing to the action, the House of Commons had submitted its privileges to the jurisdiction of the Court of Queen's Bench. He denied that. He denied that the House of Commons either intended to submit its privileges to the decision of any court of law, or that it had in point of fact, by adopting the course recommended by wise and prudent persons, done so. It was true that the House of Commons told the Law Officers of the Crown to defend the action, as was formerly done in the case of Burdett v. Abbott; but he denied that either then or now the House of Commons gave up to the Court of Queen's Bench the power of deciding upon its privileges. He was opposed to the Motion of the hon. Member for Montrose. What would be the consequence if it were carried? The Sheriff's officer would levy on the Sergeant-at-Arms. What then would happen? It would be voted to be an attack upon the privileges of the House. He would advise that the House should maintain themselves where they were. Nothing was so bad as to show a bold fight, and then to shrink from it. What would happen? The officer levies: were they to stand by and do nothing? What were they to do then? They must lay the officer by the heels. That, however, would be but an impotent revenge. He was a very unwise and rash adviser who recommended a superior court, like the House of Commons, to seek counsel from an inferior one as to defending its privileges; and more especially was he unfit to be consulted who should represent the present state of affairs as having nothing dangerous in its aspect. The matter before the House was, in fact, merely a choice of evils. He felt that it would be a very severe blow, if even it were suspected that the House of Commons were shy as to defending their own privileges. He thought it would be the safer and better course to follow the council of the noble Lord the Member for Sunderland, and guard themselves from the danger of giving a vote upon the Motion of the hon. Member for Montrose. Under these circumstances, he should vote for the Amendment of the noble Lord, unless the hon. Member for Montrose should (and which he might do without the least discredit to himself) withdraw his Motion.
§ The Solicitor General
thought it impossible for the House to escape from the necessity of coming to a determination as 1123 to whether it was proper or not for the House to exercise its authority in respect to the judgment which had been obtained against the Sergeant-at-Arms. He was bound to declare that he coincided in the opinion which his hon. and learned Friend (Sir Thomas Wilde) had pronounced as to the propriety of the judgment of the House, and the validity of the warrant issued by the Speaker. He went the full extent of saying that whether the warrant was to be considered as the act of the Speaker only, or as a warrant emanating from the House, he had not the slightest doubt that the warrant was good. But the question they now had to consider was, whether they were prepared to resist the judgment of the Court of Queen's Bench or not? It was impossible for them to blind their eyes to the fact that the public would never go along with them, if they were content merely to rest with the imprisonment of the subordinate ministers of justice. The ultimate question must be this, would they proceed against the Judges of the land or not? Their conduct would appear pusillanimous in the extreme if they did not go to the utmost extremity against all persons who interfered with their privileges. It would be advisable, however, for them just to stop and consider whether they should have the public opinion with them in such a contest; for whatever might be their privileges, they might depend upon this, that those privileges would be utterly feeble unless they were supported by public opinion; and he would defy any one to satisfy the country that in this particular instance the House was in a condition to assert its privileges to the extent contended for by the hon. Member for Montrose. It had happened unfortunately, in the case of Stockdale v. Hansard, that the Lord Chief Justice, betraying the warmth of a generous nature, gave vent to strong expressions against the privileges of the House, for which, in his judgment afterwards, he atoned in the most graceful manner. Before the House took such a step as was contemplated by the hon. Member for Montrose, he was anxious that it should consider whether it would carry the public feeling with it. In 1843, the opinion of the Court, as indeed had been anticipated, was unfavourable; and in the face of it was the House prepared to commit those by its own power who resisted under a judgment to which the House had submitted? It 1124 seemed to him impossible to adopt the course recommended by the hon. Member for Montrose with safety; and the real question therefore was, what was the House under the circumstances to do? Was it to postpone the question, and allow the levy to take place on the goods of the Sergeant, who had only acted under the orders of the House? Was he to be protected from the consequences? It was clear to him that some resolution ought to be passed to protect the Sergeant, although he was decidedly opposed to any attempt by force to prevent the execution of the judgment. The public feeling would not be with the House in any such attempt. He felt the great difficulty in which the House was placed, and he hardly knew what step to recommend; but he trusted that something might be devised which would extricate the House from its present situation
Lord J. Russell
In 1837 the House was advised by the then Attorney General (Sir J. Campbell) to plead to the action brought against Messrs. Hansard. The House did plead, and then came the question, whether the damages should be paid. I advised their payment then, on the ground that we had not interfered in the earlier stages of the proceeding. In a subsequent case the House did not plead. There the question also arose whether the damages should be levied; and the House proceeded against the Sheriffs. With respect to the present action, the House was advised that it should plead to it, and the House agreed to the Motion in 1843—a Motion made by me that Mr. Howard be summoned to the Bar being rejected. And now what is it that the hon. Member for Montrose proposes? It is this, that having omitted all preceding steps, you should now interfere to prevent the levy of the damages. If the House is prepared to take that course, they should have interposed when the parties first instituted the suit. The hon. and learned Solicitor-General had referred to the Resolution of the House which declared the institution of any suit in these cases to be a breach of privilege; and the Resolution further went on to say that any parties who should presume to be concerned in any such suit, should be amenable to the displeasure of the House, and visited with punishment. An hon. and learned Gentleman (Mr. F. Kelly), who was himself concerned in the prosecution of the present suit, has this evening expressed his opinion to the House. Now, 1125 I own that I think that that hon. and learned Gentleman did not do his duty as a Member of this House, in being concerned in such suit. But as the House neither interfered with Mr. Howard, his counsel, or attorney, in respect to this suit, I think it too late to begin now with such interference. We have lost the opportunity of doing that, and therefore I could not be a party to the Motion of the hon. Member for Montrose, that the House should now interpose. The other part of the question would be considered on a future day.
§ Sir R. H. Inglis
said, he rose to take the part of his hon. and learned Friend, who had been attacked by the noble Lord when he was not in a position to defend himself; and he did so the more readily, because in the able speech of the hon. and learned Member for Sutherlandshire—which he, in common with the whole House, had listened to with the greatest pleasure—the same subject was alluded to; and there was no portion of the noble Lord's speech which was so cheered as what the noble Lord said of his hon. and learned Friend. His hon. and learned Friend the Member for Cambridge had been attacked for taking a brief in the case of Howard and Gosset. He must say that, if the plaintiff were not to have the advantage of the services of a Member of this House, neither ought the defendant to have the benefit of the services of another Member of this House. In either case the impartiality which his noble Friend was so anxious to preserve in the deliberations of this House, would be violated. Each Member would come into the House alike prejudiced on one side or on the other. He was not conscious of any order of the House on the subject. He was aware it had been alleged by a very high authority that there was a rule prohibiting Members from holding a brief on any matter in which the House was concerned, except with the permission of the House; but, if there were such a rule, he was certain it was violated every day. In a case like that of Queen Caroline's, before the House of Lords, it had been required that Members should have leave to appear; but in no instance of a private action, that he was aware of, had permission been required. He was sure that the value of the services of his hon. and learned Friend the Member for Cambridge would be admitted by every one; and, as he was not in a position to make this statement for himself, he felt bound to make these 1126 few observations. He would not say a word on the general question, as he did not think on that subject he was entitled again to claim the indulgence of the House.
§ Sir R. Peel
I am perfectly content to vote for the Motion of the noble Lord, that this debate should be adjourned to a future day. There is a difficulty in this case, and in every case connected with privilege, that we are anxious to postpone the evil day, and it is natural that we should; but do not let us suppose that we are escaping from the real difficulty of this case by adjourning the debate. I cannot conceal from myself that if we are disposed to advise resistance to this encroachment on our privileges, the present is the day when we ought to do it. I quite understand the doctrine that by pleading we did not acknowledge the jurisdiction of the Court; but I deeply lament, at the outset, that we ever did consent to plead. I was a party to the Resolutions that the privileges of this House should be exempt from question in a court of law—that we had competent power to protect our privileges, and that we should consider any authority that called them in question guilty of a contempt of this House. Eight days after we came to these Resolutions, we consented to plead in the case of "Stockdale v. Hansard," at the instance of the then Attorney General (Sir J. Campbell) who gave us that advice, not from indifference to the maintenance of our privileges—for they never had a more able or efficient advocate—but from a mature consideration of all the difficulties of the case, and on account of the imperfect powers—for we must make the admission—that we possessed for defending them. Such being the case, the then Attorney General gave us the advice to plead, which was at the same time consistent with a determination to do all he could in defence of our privileges. I foresaw that the consenting to plead in that case would greatly fetter our future course. I repeat that I understand the doctrine, that by pleading for the purpose of informing the court that a certain thing was done by our order, does not amount to an admission of the jurisdiction of the court; but it was nevertheless, a step embarrassing to us. Still I draw a distinction between pleading in a court of law, and paying these damages; but acquiescing in the payment of the damages—that is to say, if we chose to 1127 close our eyes, not giving any direct authority to the Sergeant to refuse the payment, contenting ourselves with saying, that we gave no instructions, and that we would not be parties to the payment, depend on it, that that is tantamount to coming to a resolution, that on the whole it is advisable that the Sergeant should pay the damages. I only mean to say—do not let us disguise from ourselves the real state of things, after paying the damages; or, what is the same thing, after acquiescing in their payment on Monday, by adjourning the present debate, it will then be inconsistent for us on Monday to say, with respect to the parties who might levy the damages, that they should be proceeded against by the exercise of the powers of this House for a breach of privilege. If you consider the levying of these damages a breach of privilege, it is your duty to give notice to the parties that they must not proceed to levy, and that if they do proceed they will be committed; but to let this night pass, and to let damages be levied on your Sergeant, would preclude you from exercising the power of committing the parties to whom you have given no notice not to proceed. We cannot pretend to be ignorant of the facts of the case. The Committee has reported that "they do not deem it expedient to advise the House to interpose to prevent the levy." We have adopted the printing of that Report; and cannot plead ignorance, therefore, of the fact. Sir, I acquiesce in the adjournment, not concealing from myself the consequences, but being prepared to admit that any mode of disposing of this question to-night, excepting a distinct notice to the parties to proceed at their peril in the levy of these damages, will hereafter prevent us from exercising the authority of this House by punishing those parties. But, at the same time, I am bound to state, that foreseeing the consequences of the adjournment, I object to the Motion of the hon. Gentleman, because I am not prepared to enter on that conflict, to which I apprehend we are not yet come. I know what the consequences of delay will be; and I think the hon. Gentleman has some reason in calling on the House to affirm his Resolution. But I am not going to enter on that conflict; because, looking back on what has passed, and considering the imperfect means I have of vindicating the privileges of this House, 1128 I see it is absolutely necessary that we should make up our minds not to deal with subordinate officers. It will give no satisfaction to commit those subordinate agents of the Court, to deal with the officer that enters a room, and to call up the Sheriff, who is threatened, on the one hand, with attachment by the Court of Queen's Bench, and, on the other hand, by committal by this House; but when it does become absolutely necessary to vindicate your privileges—and I don't say the time will not come—depend on it you must make up your mind to deal with other men. You must either solve the difficulty—as you did before, in the case of the Printed Papers, where, in my opinion, your privileges were invaded — by legislation, or, feeling the essential importance of maintaining those powers and privileges given to you, not for your own benefit, or for mere capricious exercise, but given to you for the protection of the greatest interests of a free people, you must vindicate them by your own inherent powers. You must be prepared to take a course different from that you took when you committed the Sheriffs in 1840. You must not look out for excuses, that after a certain period you may release those you have committed; you must be prepared to go to all extremities in the vindication of your privileges. And in order to do that—in order to do it with effect—you must feel in your mind and conscience, in order that you may be supported in such a course, that the necessity has absolutely arisen—that there is no room for further delay, or resort to other powers—you must not only have that impression, but, on account of the imperfection and insufficiency of your powers, you must be backed by the prevailing and predominant feeling of the people of England — that you have no other alternative for the protection of their interests than resorting to that course. In that course I believe you will succeed; but don't enter on it without the deepest conviction that the time for it has arrived. I do not think that period has arrived; I do not think we have taken the preliminary proceedings which would justify us in resorting to it. I won't now enter into the general question. If I made no concession of jurisdiction to the Court below, in my opinion I make no concession of jurisdiction by going to another tribunal, and saying, "I believe this decision to be 1129 wrong. I believe that what was done was done by order of the House of Commons. I go to the Court in Error as I went to the Court of Queen's Bench; I believe I shall succeed in establishing my right." That is a course which it is open to me to pursue. Although I trust, from the declarations I have made, and the course I have pursued, I have shown no disinclination to vindicate the privileges of this House—no indifference to their maintenance—no depreciation of their importance; yet, foreseeing what the contest will be—seeing I may be opposed by a powerful minority in this House—I will not resort to a last extremity, till I have exhausted every other means—till I feel the necessity has absolutely arisen—till I feel there is no other resource for maintaining privileges which I believe essential to the welfare of the country, and which I will say I believe endangered by this decision of a court of justice. I believe that decision to be an unjust one; but I will not resort to extreme measures, looking to the imperfections of the instruments I have to deal with, and the difficulties with which I have to contend, until I can, with a safe conscience, say to the people of this country, every other means have been used, and there is no alternative but to resort to our own authority for the vindication of our own privileges.
lamented that the discussion had this night proceeded to such a length; and that the right hon. Baronet had alluded to certain circumstances to which he did not expect him to advert. At the same time, he concurred in opinion with the right hon. Baronet; and while he did not deny the right of the House to interfere, as the hon. Member for Montrose had suggested, he doubted whether the proposal would be supported by a majority. He agreed that subordinate officers ought not to be made responsible to the House, and that, if necessary, proceedings should be taken against the Judges themselves for the vindication of privilege. He maintained that the judgment of the Court of Queen's Bench was a mere thing of shreds and patches; that two of the Judges had contradicted themselves repeatedly; and that the result—to use the mildest term—was erroneous. He entreated the hon. Member for Montrose not to place the House in a difficult and disadvantageous position; and regretted that he had been misled by the hon. 1130 Baronet the Member for Oxford, who was no very skilful Palinurus, to recommend a course which he would not have proposed had he given the subject twenty-four hours' deliberate consideration. If the hon. Member persevered with his Motion, and were defeated, he could never again advance the doctrine of privilege with force and effect.
§ Mr. Hume
, in reply, said, hon. Gentlemen who were in favour of an adjournment, admitted the evil, but had not the courage to grapple with it. The hon. Baronet the Member for the University of Oxford said, there was no rule why a Member of that House should not give advice against the House. The rule was this, that no Member of the House should appear before a Committee to argue any question in which he ought to be, or rather might be, the judge. He thought that if their privilege was to be asserted at all, it should be asserted now. The hon. Gentleman (the Solicitor General) pointed out all the evils and difficulties of the question, and then sat down without telling the House what he was prepared to do. They were placed in a lamentable position. The action might have been brought against the Speaker himself, and, in fact, as their head it should have been so. He thought that the principals alone ought to be amenable; and he was still disposed to think that Lord Denman should be called to the bar of the House; and, from what the right hon. Baronet (Sir R. Peel) had said, he thought it would come to that in the end. What reason was there, he would again ask, why they should not proceed with the discussion? They were now ancle-deep in the mud; why should they become knee-deep? They had been kicked on Monday, as it were, and buffeted on Tuesday; on Wednesday they said they would submit to be kicked again, and they would then, when the evil was done, be courageous enough to grapple with it on the Thursday. He hoped that a sufficient number would be found to agree with him in rejecting a proposition for further delay. Every hon. Member who had heard the speech of the right hon. Baronet (Sir R. Peel) must be convinced that he was as anxious to go on as he (Mr. Hume) was; and the right hon. Baronet had offered no excuse whatever for postponing the discussion to a future day. The delay could effect no good object, for they were now in possession of as much information as they should hereafter obtain.
said, that at the end of the speech of the hon. Gentleman the Solicitor General, that hon. Gentleman stated, that unless the House interfered immediately, the Sergeant-at-Arms would be put to considerable inconvenience on Monday next. Now, he should be glad to be informed in what way the hon. Gentleman wished the House to interpose to protect the Sergeant-at-Arms.
§ The Solicitor General
was not aware that he had proposed that the House should interfere immediately. He said that he thought the House should do something to prevent the inconvenience to which the Sergeant-at-Arms would be subjected; he, however, agreed in the propriety of postponing the discussion.
§ Mr. Hawes
had listened attentively to the speech of the right hon. Baronet (Sir Robert Peel) and, admitting as he did, that their privileges would be violated, supposing the parties in question proceeded to levy, he wished to ask the right hon. Baronet whether he would be disposed to support a Resolution, the effect of which would be to give notice to the parties that if they proceeded in levying the execution, they would be violating the privileges of the House?
§ Sir R. Peel
said, the hon. Gentleman could not have listened very attentively to his observations, for if he were to adopt the suggestion of the hon. Gentleman, after having served such a notice as he proposed, if the parties proceeded to levy, it would be necessary to take some steps to punish them; and he (Sir R. Peel) had said that he was not prepared to support the committal of the plaintiff, or any other person. He had said that distinctly, and he was surprised that the hon. Gentleman should have put such a question.
§ The House divided, on the Question that the debate be adjourned to June 9th:—Ayes 96; Noes 50: Majority, 46.
|List of the AYES.|
|Acland, T. D.||Baskerville, T. B. M.|
|Acton, Col.||Bernal, R.|
|Adare, Visct.||Bodkin, W. H.|
|Adderley, C. B.||Bouverie, hon. E. P.|
|Ainsworth, P.||Bowles, Adm.|
|Arundel and Surrey, Earl of||Bruce, Lord E.|
|Bruce, C. L. C.|
|Baillie, Col.||Buckley, E.|
|Barkly, H.||Buller, Sir J. Y.|
|Baring, rt. hn. W. B.||Campbell, J. H.|
|Barnard, E. G.||Cardwell, E.|
|Carew, W. H. P.||M'Taggart, Sir J.|
|Chute, W. L. W.||Mainwaring, T.|
|Clerk, rt. hon. Sir G.||Martin, C. W.|
|Cockburn, rt. hn. Sir G.||Masterman, J.|
|Connolly, Col.||Meynell, Capt.|
|Corry, rt. hon. H.||Mitchell, T. A.|
|Crawford, W. S.||Mundy, E. M.|
|Cripps, W.||Murphy, F. S.|
|Darby, G.||Nicholl, rt. hon. J.|
|Dickinson, F. H.||O'Ferrall, R. M.|
|Drummond, H. H.||Patten, J. W.|
|Dundas, D.||Peel, rt. hon. Sir R.|
|Entwisle, W.||Peel, J.|
|Fitzroy, hon. H.||Polhill, F.|
|Flower, Sir J.||Pringle, A.|
|Fremantle, rt. hn. Sir T.||Pulsford, R.|
|Gaskell, J. Milnes||Pusey, P.|
|Gladstone, rt. hn. W. E.||Russell, Lord J.|
|Godson, R.||Scott, hon. F.|
|Graham, rt. hn. Sir J.||Seymour, Lord|
|Greenall, P.||Shaw, rt. hon. F.|
|Greene, T.||Sheil, rt. hon. R. L.|
|Grimsditch, T.||Smith, A.|
|Grogan, E.||Smith, rt. hn. T. B. C.|
|Hamilton, J. H.||Smollett, A.|
|Hampden, R.||Somerset, Lord G.|
|Hanmer, Sir J.||Spooner, R.|
|Hatton, Capt. V.||Stanton, W. H.|
|Herbert, rt. hon. S.||Stuart, W. V.|
|Hope, hon. C.||Sutton, hon. H. M.|
|Irving, J.||Thesiger, Sir F.|
|Jermyn, Earl||Vivian, J. E.|
|Kemble, H.||Wilde, Sir T.|
|Labouchere, rt. hn. H.||Wood, Col. T.|
|Langston, J. H.||Wynn, rt. hon. C. W. W.|
|Loch, J.||Young, J.|
|Mackenzie, W. F.||Grey, Sir G.|
|M'Neill, D.||Howick, Visct.|
|List of the NOES.|
|Aglionby, H. A.||Mahon, Visct.|
|Baillie, H. J.||Manners, Lord J.|
|Baine, W.||Marshall, W.|
|Baldwin, B.||Martin, J.|
|Blake, M. J.||Martin, T. B.|
|Bowring, Dr.||Mitcalfe, H.|
|Brotherton, J.||Napier, Sir C.|
|Browne, hon. W.||Norreys, Sir D. J.|
|Christie, W. D.||O'Brien, A. S.|
|Clements, Visct.||O'Brien, J.|
|Clive, Visct.||O'Connell, M. J.|
|Collett, J.||O'Conor Don,|
|Dennistoun, J.||Osborne, R.|
|Disraeli, B.||Pakington, J. S.|
|Duncan, G.||Plumridge, Capt.|
|Gibson, T. M.||Protheroe, E.|
|Granger, T. C.||Ross, D. R.|
|Hawes, B.||Rumbold, C. E.|
|Hope, A.||Stansfield, W. R. C.|
|Horsman, E.||Strutt, E.|
|Inglis, Sir R. H.||Tancred, H. W.|
|James, W.||Trelawny, J. S.|
|James, Sir W. C.||Warburton, H.|
|Law, hon. C. E.||Watson, W. H.|
|Wawn, J. T.||TELLERS.|
|Williams, W.||Hume, W.|
|Roebuck, J. A.|
§ Debate adjourned accordingly.