The Marquis of Clanricarde
said, he wished to ask a question of the noble Duke at the head of his Majesty's Government. The other evening, 926 during the Debate respecting the affairs of Portugal, the noble Duke stated that he had a high legal opinion in favour of the conduct which had been pursued by Government with respect to the affairs of Portugal, and more particularly with regard to the firing which took place off Terceira. He wished to know whether that opinion were an official document in the possession of Government, and if it were, whether there existed any objection to its being laid before Parliament? Such a proceeding was not, he believed, very unusual, and certainly it was not unparliamentary; and he thought that the Government must be anxious to support the view it had taken of a question with respect to which serious differences of opinion were entertained.
§ The Duke of Wellington
said, that he certainly was in possession of the opinion which on a former evening he stated to have been given to Government on the subject to which the noble Lord referred; but he believed it was the invariable practice of Ministers not to place such opinions before Parliament.
observed, that, if it were the invariable practice of Ministers not to furnish Parliament with certain official papers, it was equally the invariable practice of every Minister not to quote such papers. He did not understand what the noble Duke meant. He came down with a legal authority—an official document, the purport of which he stated to their Lordships, but now he told them they must not judge of all the bearings of that document, because it was the invariable practice of Ministers not to furnish Parliament with such documents. He was not certain that the practice was as the noble Duke represented—at all events, he could state an exception to it. It would doubtless be in the recollection of the noble Duke, that about eight or nine years ago Lord Sidmouth, then Secretary of State for the Home Department, issued a Circular, which excited considerable sensation at the time. When his Lordship was called upon for an explanation of his conduct in regard to that Circular (motions were made on the subject), he laid on their Lordships' Table the opinions of the Attorney and Solicitor-General in support of what he had done. In conclusion he must repeat, that if the document could not be produced, it was unfair to quote it in order to influence their Lordships' minds.
§ The Duke of Wellington
said, he was entirely responsible for his own acts, and the other members of his Majesty's Government were equally responsible for their acts. He had stated in argument that he considered the acts of the Government justified by the legal opinion which Ministers had received on the subject, and which of course they had felt it their duty to call for. The noble and learned Lord on the Woolsack knew perfectly well what the practice was on the subject, and he appealed to him whether it were not the practice to refuse to give up the opinions which the law-officers of the Crown had, when called upon, communicated to the servants of the Crown. The servants of the Crown must take on themselves the responsibility for their own acts.
The Lord Chancellor
said, that whilst he had the honour to hold the offices of Solicitor and Attorney General, his attention had been at different times directed to this point, and though he did not mean to say, that in no one instance had the opinions delivered confidentially by the law-officers of the Crown been communicated to Parliament, he had always understood that it was not the practice to apply for such opinions, nor to lay them before Parliament when applied for. They were considered to be confidential communications from the law-officers of the Crown to the members of Government, for the purpose of guiding their judgment on matters of state. With respect to the particular instance to which his noble friend had alluded, he believed that the opinions of the law-officers were communicated to Parliament by Lord Sidmouth without any application from any Member of either House of Parliament. It was his voluntary act, and he not only made the communication to Parliament, he circulated those opinions through the country at large for the purpose of regulating the conduct of the people.
said, he understood from the explanation of the noble and learned Lord, that these confidential papers might be communicated to the public, but not to Parliament. This certainly was the most extraordinary description of confidential papers he had ever heard of. [a laugh] An individual might come down to the House, and state the contents of certain papers, in order to influence the judgment of the Members; but when their Lordships asked to see the papers, in order to ascertain whether their 928 contents had been correctly quoted, all at once a mystery was assumed. The papers were secret; they contained confidential communications which must not be known. Lord Sidmouth, it seemed, could not communicate his papers to Parliament until he had first sent them before the public. He supposed that the only chance their Lordships had of getting at the noble Duke's papers was, by his being so good as to confide them, in the first instance, to the public and all Europe. He considered the conduct which was pursued upon this point unparliamentary and unconstitutional; and he hoped that some noble Lord would move for the papers, in order to afford their Lordships an opportunity of expressing their sentiments on the subject.
§ The Earl of Eldon
could state, without any difficulty, that thirty years ago, when he had the honour to hold the office of Attorney General, it was not the practice to lay before Parliament the opinions given by the law-officers of the Crown. He remembered it being related of Sir Fletcher Norton, when Attorney General, that in consequence of a motion for the production of an opinion which he had given to the Government, he declared that he would never give a written opinion again, as long as he was Attorney General. If a motion were made for the production of the opinions in the present instance, he would vote against it. But he thought if papers were not to be produced, they ought not to be quoted. That the opinions of the law-officers of the Crown must have considerable influence with the House, was beyond all question. The practice he believed to be, that these opinions ought not to be called for, and that being the case, that they ought not to be quoted. He hoped what had passed would put a stop to the practice of quoting opinions of this nature.