Sidebilder
PDF
ePub

Hansard on the first plea, or, in substance,
The jury, accordingly, found against

an entirely novel practice introduced for
entirely novel purposes. This our read-
ers already see is the key-stone of the
whole affair. We shall revert to it by
and by in argument at present we men-
tion it only in the series of facts. Under
this resolution a report made in pursuance that he had published a libel, but for him
of the provision of an Act of Parliament
(5 and 6 Will. IV.) by certain Inspectors the matter was true; which prevented
on the plea of justification: namely, that
of Prisons' was offered for sale, in which the recovery of any damages by the plain-
report, after stating that improper books
found their way into Newgate, it was add-
ed that amongst them was-

"

in his public shop, and especially for money, which may be injurious, and possibly ruinous, to any one of the King's subjects, must answer in a court of justice to that subject, if he challenge him for a libel.-Pemberton, pp. 8, 9.

tiff.

It was now-and not till now, when the question had been allowed to come to a judicial decision-that the House of Commons interposed. The question raised by Mr. Attorney, and negatived by the Chief-Justice, was in terms so large as to involve the privilege of publishing defa

true.

For this passage Mr. Stockdale-actu- matory matter against an individual, even ated, it seems, rather by a morbid love of in a case in which parliament should think notoriety than by any other motive- it necessary for the public service spebrought an action for libel against Messrs. cially to order such a publication—a case, Hansard. To this Messrs. Hansard put be it observed, essentially distinct in pubin a general plea of not guilty, by which lic policy from that then before the court, the fact and nature of the publication of an accidental and incidental defamation were put in issue; and they also pleaded published under a general resolution to a justification, that the alleged libel was sell commercially for profit every thing which might happen to be printed for the use of the house. It must, therefore, be admitted that the House was perfectly justifiable in determining to clear up the ambiguity, and to contend for the right of special, or even, if it pleased, of general sale: but it is to be regretted that it did not rather, according to many successful precedents, prefer to carry the matter forward in the legal course by writ of error, than to take the matter prematurely, as we think, into its own hands, and attempt to set aside the proceedings of the court by the high hand of its own authority; above all, we cannot hesitate to express our wonder that, when the House of Com. mons determined to proceed to extremities in the assertion of its privilege, it did not fairly and manfully go to the fountain-head of the opposition. The opinion. of the Lord Chief Justice-confirmed by a subsequent decision of the whole court the real, but in fact the only direct, for-was and is to this moment not merely mal, and tangible denial of the privilege claimed. Neither Stockdale, nor the sheriffs, nor the inferior agents who have been since implicated in the affair, pretend to directly deny or affirm anything about the privileges of the House of Commons: they do things that the house pronounces, ex post facto, to be against their privileges, but these things, at the time the parties did them, they believed to be

"the

eighteen

by plates, published by Stockdale, 1827. This last," they observed, is a book of a most disgusting nature, and the plates are obscene and disgusting in the extreme."'—p. 7.

This, however, they did in their own private capacity, and it does not appear that the House of Commons interfered, or thought they had any authority to interfere, to stop the action. This is a remarkable fact.

The Attorney-General happened to be counsel for Hansard-as he might have been for John Doe or Richard Roe-for it does not appear that he had any directions on the subject from the House of Commons; the question of whose jurisdiction was not in any way raised on the face of the pleadings; but, in his speech, Mr. Attorney unfortunately raised that question, by insisting, on the part of the defendants, that the publication was privileged on the ground of its having been sold by order of the House of Commons. On this Lord Denman told the jury

'It seems to me, gentlemen, that the only ques tions for you upon the general issue can be, first, whether the publication was by the defendants at all; and, secondly, whether it is a publication of a libel; because, on the third ground, namely, that this is a privileged publication, I am bound to say, as it comes before me as a question of law for my direction, that I entirely disagree from the law laid down by the learned counsel for the defendant. I am not aware of the existence in this country of any body whatever that can privilege any servant of theirs to publish libels of any individual. What. ever arrangements may be made between the House of Commons and any publisher in their employ, I am of opinion that the publisher who publishes that

according to the law of the land; and the cluded. A different course was unhapfirst constitutional expounder of the laws pily adopted. of the land, the Court of Queen's Bench, A select committee was appointed to has told them that they were right. It consider the whole question, and in a was the Court of Queen's Bench, and in very able and elaborate report of the 2d a more particular manner the Lord Chief- / May, 1837, that committee embodied Justice, who denied the privilege, and certain abstract propositions, much larg. who even travelled a little beyond the ac- er, as we have said, than the case retual case to enlarge, and corroborate, and quired, and about which, both in their solemnise that denial in the most empha- extent and application, we, in common tic manner. · The direction,' said the with many others of infinitely greater Chief Justice, of the House of Commons authority, entertain very serious doubts: to Messrs. Hansard is no justification for • Your committee, having considered the subject him, nor for any other bookseller who of parliamentary privilege, and the jurisdiction of publishes a parliamentary report contain this house to determine the extent of its own priviing a libel against any man.'

Thus en

leges, submit, as their opinion, that by the law and

usage of parliament, the House of Commons does larging his decision beyond the present possess an exclusive jurisdiction, and that it is a case ; -and he gives his opinion

breach of its privileges to bring them into discussion

before any other tribunal, directly or incidentally; emphatically and distinctly ; because I think, and that such breach of privilege subjects the par. that if, upon the first opportunity that arose in a ties to punishment by this house.'--p. 12. court of justice for questioning that point, it were left unsatisfactorily explained, the judge who sat On this important proposition we must there might be an accomplice in the destruction of make two observations; first, that it the liberties of the country, and expose every

indi: vidual who lives in it to a tyranny that no man

asserts a right in the House, never, we ought to submit to.'-p. 9.

believe, before contended for, of creating

new privileges, which it should be as This is a denial of the privilege the highly penal to question as any of its old, most distinct and emphatic' that, we be- undoubted, and constitutional rights ; lieve, was ever pronounced anywhere. this seems to us a very violent assumpBut this real and sufficient cause and tion, and one which, probably, the comonly justification of the subsequent alarm mittee did not seriously mean to claim. of the Commons was not, as in common And, secondly, that it was equally penal sense it ought to have been, debated and to bring any of the privileges of the decided between the Court of Queen's House into discussion, direcily or indiBench and them; but after considerable rectly. Now, without stopping to show delay they took a subsequent opportunity the absurdity of prohibiting any discusof turning round on some poor devils, sion, directly or indirectly,' of questions printers and clerks, whose acts did not of privilege, which could, in naturâ redirectly impugn the privilege, and whose rum, be neither established, nor defined, submission would not have confirmed it nor understood, without some such dis—whatever these poor people might have cussions-and in support of which the been terrified or tortured* into doing, committee adduced an infinite number of would not have obliterated or invalidated discussions and decisions in the courts the judgment of Lord Denman, or the of law-exclusive, we say, of this absurddecision of the court. This appears to ity, it contained one still greater; for, in us the greatest and least excusable error the present case, the offender against the House of Cominons has made, be- this asserted privilege was-not Stockcause it was undignified as well as unjust, dale, nor the Chief Justice, but-Mr. and every way unfortunate, to attempt to Attorney General himself, who was the intimidate ignorant and comparatively first to bring the question of privilege innocent underlings, rather than boldly into discussion. Nor, if the committee and fairly to debate the right with the had said, what they probably meant, 'an superior and only authority which had adverse discussion,' would it have cured questioned it, and with whom alone a the absurdity; for he who takes before a contest of so delicate a nature could be court of justice the affirmative side of a creditably conducted or effectually con- discussion obliges the Court to discuss

the negative as well as the affirmative,

and to decide negatively if it feels itself * See the strange propositions of Lord Howick bound in law and conscience to do so. and the Solicitor-General for increasing the severity Mr. Attorney was, therefore, in this of coercion on Stockdale and Howard, when it was found that simple imprisonment was likely to fail. point, the real culprit

The report then proceeds—

obvious and prudent course of appealing by writ of error from the decision-they paid the damages: thus substantially stultifying all their own pretensions, and virtually admitting the legality of all Stockdale's proceedings.

'

That, by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its priv. ileges; and that the institution or prosecution of any action, suit, or other proceeding, for the purpose of bringing them into discussion or decision, before Now occurred what is called Polack's any court or tribunal elsewhere than in Parliament, is a high breach of such privilege, and renders all case, and which has been too little and parties concerned therein amenable to its just dis- too superficially considered; for, though pleasure, and to the punishment consequent thereon. That for any court of tribunal to assume to de. its relation to the Stockdale proceedings cide upon matters of privilege, inconsistent with the was only incidental, it illustrates very determination of either House of Parliament there- forcibly the true principles of the general on, is contrary to the law of Parliament, and is a question. The facts are these. A combreach and contempt of the privileges of Parlia-mittee of the House of Lords had made, ment.'—pp. 12, 13. and that House had, in its usual course, And this is stated in a report which pro- ordered to be printed, a report on New duces and relies upon numerous cases Zealand, with an appendix of evidence, (Ashby and White, Burdett and Abbott, containing some defamatory matter for instance) in which the House had against Mr. Polack. Did Mr. Polack accepted, and appealed to, the judgments dream of attacking the House of Lords? of the courts of law in questions of privi--not at all; but by-and-by the Times' lege-sometimes successfully, sometimes newspaper, deeming that the evidence unsuccessfully-but in which it had, might interest the public, reprinted it; when unsuccessful, acquiesced in the and then Mr. Polack, seeing that he had adverse decision. an unprivileged commercial publication We really do not understand how the to deal with, brought an action against House could have agreed to resolutions the Times,' and recovered £100 damso extravagant and contradictory. Mr. ages. This was a hard case on the Pemberton, in his excellent pamphlet,Times;' but it marks very clearly the seems to account for it by saying that distinction-the legal and constitutional they were passed unexpectedly in a very distinction-between the privileged and thin house. Passed, however, they were, the unprivileged publication of a parliato the great surprise of all thinking men mentary document; and what followed out of doors, and particularly of the marked it still more strongly. whole legal profession, with the single exception, we believe, of Mr. Serjeant Wilde (now Solicitor General) who is supposed to have had the chief hand in framing the report, which, able as we admit it to be, is peculiarly powerful in proving what nobody questioned, but rather deficient in establishing any of the substantial points on which its conclusions could be founded.

These resolutions, and the public opinion upon them, encouraged, it would seem, Mr. Stockdale to commence another action for a different emission of the Inspectors' report. Still the House attacked neither the judge, nor the party, nor the attorney, as, in pursuance of these recent resolutions, might have been expected; but, on the contrary, and in the teeth of their resolution, directed that Hansard should plead. He did plead; and on a solemn argument the whole court affirmed, in substance, the ChiefJustice's former opinion, and damages of £100 were awarded to Stockdale.

Here, again, the House inade an extraordinary halt. They neither put their resolution in force, nor followed the more

The House of Lords thought it right to communicate its report to the House of Commons, who ordered it to be reprinted, and then, as a matter of course, under the resolution of 1835, Messrs. Hansard sold, in their public shop, at the price of 4s., that which, in the case of the Times,' was pronounced a punishable libel. Can common sense imagine any possible distinction between the sale by Hansard and by the Times? No wonder, then, that Mr. Polack-fortified by his verdict-sanctioned by the opinion of the Queen's Bench in Stockdale and Hansard-and encouraged by the retrograde proceedings of the House of Commons itself, should have brought an action against Hansard for the republication of the libel. Hansard appealed to the House of Commons; and that House, which had so recently decided, in a precisely similar case, that Hansard should plead, were now pleased to decide that Hansard should not plead; but still, contrary to its recent pledges, took no measures whatsoever against the parties who brought, or the courts which entertained the action.

mere

usage that

never

Polack's case, we know not why, here, tween the Queen's Bench and the House fell to the ground; but our readers see of Commons, unless the House will ei. that, as far as it had gone, it corroborates ther consent to carry one of the causes our view of the obvious distinction be- to the dernier ressort (as had been done in tween a privileged publication and a pub- Ashby and White, and in Burdett and lication by commercial sale ; and, though Abbott,) or that there may be found some not farther prosecuted, it had incident- extrication from the difficulty by a legis. ally a serious effect on the next step in lative enactment. On this latter point the Stockdale case. For, encouraged, we shall say a few words by and by ; we presume, by this repeated dere iction but let us previously look back to the ra. of its resolutions, on the part of the tionale of these proceedings. House of Commons, and this variation For near 150 years, ever since the esfrom its former course of proceeding, tablishment of the present constitution in Stockdale took advantage of the recess 1688, the House of Commons has (with to bring a third action against Hansard. insignificant exceptions) continued to sell

The House not being sitting, Hansard its roles, and occasionally other papers ; had recourse to the Speaker, who took and to print, and of course to distribute upon himself to act upon the view which to its members, and, by its members, to the House had lately adopted in Polack's the public, all other documents, accord. case, and directed Hansard not to plead. ing to its discretion ; and, as far as we The Speaker had, it seems, forgotten, know, without any difficulty or question, that, in spite of the proverbial delay of till the present period. It is obvious the law, an undefended cause progresses that a

has rapidly, and, in fact, Stockdale obtained been questioned because perhaps it a verdict of £600 by Hansard's default; never was abused, would not be any and this amount was levied, in the usual conclusive argument that the abuse of course of law, by the Sheriffs of London it would be legal.

But as it is pre. and Middlesex, on the goods of Hansard, sumed that in this long course of time during the recess.

much defamatory matter must have been The House, on its re-assembling, now published, which would probably have found itself driven into the most difficult been complained of or prosecuted, if any strait of abandoning its resolutions, or of doubts of the legality of this kind of proceeding summarily against all the publication had been entertained—it may, parties to the third suit : they adopted on this presumption, be further presumthe latter course. Stockdale and his at. ed that the Houses of Parliament have a torney* were committed, and the sheriffs, right, in the bona fide exercise of their prowho refused to pay back to Hansard the per functions, to print for their own use, money they had levied, and which by and to distribute, and perhaps even to sell* law they were bound to pay over to (sale being only a regulated distribution) Stockdale, were committed also. The matters which may happen to be defama. subsequent release of the sheriffs, on ra- tory of individuals, when in their judg. ther flimsy excuses, has no other effect ment the public service may require it. on the great question at issue than to It is not easy to controvert in the abshow, either that the House was not stract the position of Lord Denman, that very firm in its position, or that it was no man can be excluded from appealing reluctant to inflict a severe punishment to the law against an injury of this naon individuals for a matter in which they ture ; yet, thinking that salus populi is were officially and ministerially impli- suprema lex, and that the right of publicated, without any fault of theirs ; Stock- cation, as it was exercised by the Houses dale and his attorney, and even the attor- of Parliament up to 1836, is necessary ney's son, a boy under age, and his clerk to the due discharge of their high funewho was no more than the mere instru: tions, we do not believe that the courts ment of his master, still remaining in would have entertained any action for a custody. But this has not prevented the libel published by their advised authority. bringing of fresh actions ; nor can it, we * We treat the abstract right to sell thus dubiousfear, prevent the ultimate collision be- ly, because we have in fact very great doubts about

it ; or, to speak more candidly, a strong leaning * The attorney was not committed in the first the other way (not deeming precedents of an un. instance. On being brought up on the third ac. questioned practice conclusive as to its being un. tion he expressed his regret, and was discharged questionable); but, as our view of the subject ap. the same night the sheriffs were committed ; a few plies to the special sale under the resolution of days afterwards he proceeded with the fourth ac. August, 1835, we think it best not to complicate tion, and was thereupon finally committed. the question with the wider discussion.

42

VOL. LXV

It would indeed have been almost im. We believe a great deal of the error possible to have brought any such action and confusion of this case has arisen from for a plaintiff to a favourable issue ; for the legal technicality, that, in cases of liin the first place no paper, we believe, bel, sule is no essential ingredient—the ever was sold without having individuul. whole question being publicaliun. This ly received a special inp imlur and or. is incontrovertible in ordinary cases; but der for the salv, under the Speaker's own surely there is, in the common sense and hand, which was not only a guarantee understanding of mankind, a vast differagainst the publication of improper mat. ence whether a paper be distributed ad. ter, but was a certificate of the public visedly by the s!ipreme authority of a expediency of publishing matter which branch of the legislature for public purmight otherwise have appeared question- poses, or whether it be promiscuously able ; and as to the class of papers which sold as a matter of commercial dealing were most liable to contain defamatory and pecuniary profit. One is privilege, matter, their distribution amongst mem- the other is trade. We admit the right bers, or even by members to their con. of the House of Commons to privilege, stitucnts, would, (when private malice but we never before heard that it precould not be shown) have been, we in- tended to a right to trade ; for we do not cline to think, protected as a privileged think that the few and cautious instances communication ; and in such a case, con- in which the house has heretofore allowtrary to the full extent of Lord Denman's ed the sale of papers, can be, in principle dictum, an individual, though he might be or in practice, assimilated to the wholeinjured, would have no legal remedy. sale dealing which it has lately practised Suppose my Lord Chief Justice himself in partnership with Messrs. Hansard. But had occasion-as happens frequently towe may be asked where we would draw every judge-to express, in open court, the line. We reply that we would draw a strong censure on the conduct of a par. no line at all. We would leave matters ty or of a witness, even though it were so as they were before the unfortunate resofår extrajudiciul as to be a mere interlo. lution of 1835; and, as we had gone on cutor, can it be alleged that such a person for 150 years without any serious diffiwould have an action for defamation ? culty, we think it probable that we should We are satisfied that my Lord Chief Just- go on just as well for 150 years more ; ice did not mean to go to that extent ; or if any difficulties should arise, the onus and his words, any publisher who pub- would then lie, as we think it does now, lishes in his public shop' (though some on the innovators. what embarrassed by the addition of es- And this leads us to another important pecially for money') must have meant, consideration. Privilege is not to be

any man who publishes commercially.' created pro re natâ : it is founded in preAnd though he subsequently added, - scription, and confirmed by time. It is the fact of the House of Commons having di- not a mode, n gothic of yesterday's lath rected Messrs. Hansard to publish all their Parlia. and plaster: it is the old baronial fortress mentary Reports is no justification for them, or for of our liberties, venerably ancient, and any bookseller who publishes a Parliamentary Re. port containing a libel against any man,'

yet still adequate, by successive accom

modations, to its proper purposes, but yet we apprehend, by the introduction of the most ungainly edifice in the world to the word all,' that he had an eye to a turn into a shop. We may build a new promiscuous commercial publication; and House of Commons, but we must not that his Lordship would probably not have erect new privileges. The House affects applied his doctrine to the case of a paper to stand on its ancient privileges : is that specially approved by the Speaker, and consistent with innovations? And will ordered to be distinctly published, or any man in his senses deny that the reso. even sold (though that, we again repeat, lution of August, 1835, is an innovation ? may admit of more doubt), for some rea- If we have been in this respect, and alson of public utility or policy. He would most in this alone, a peaceable commuprobably, we think, have said that he nity for 150 years, and if we are now discould not judge of the motives which so turbed by the introduction of an innovahigh an authority might have for such a tion, what is the remedy? To call in publication, on the same principle that he other innovations to our help ?-No; but refused to inquire into the nature of the to turn the original innovation out of contempt on which the House thought doors. proper to commit Stockdale.

But it may be said the spirit of the

« ForrigeFortsett »