Right of Commons

to publish

privilege was followed by its usual consequences. The martyred prisoner was an object of sympathy and adulation, the Commons were denounced as tyrants and oppressors.

Overcome by force, Sir Francis brought actions against the Speaker and the Sergeant, in the Court of King's Bench, for redress. The House would have been justified by precedents and ancient usage, in resisting the prosecution of these actions, as a contempt of its authority; but instead of standing upon its privilege, it directed its officers to plead, and the Attorney-General to defend them. The authority of the House was fully vindicated by the Francis prosecuted an appeal to Chamber, and to the House of Lords. of the court below being affirmed, all conflict between law and privilege was averted. The authority of the House had indeed been questioned; but the courts, declared it to have been exercised in conformity with

the law.

court; but Sir the Exchequer

The judgment

Where the courts uphold the authority of the House, all is well but what if they deny and repudiate it? Since the memorable cases of Ashby and White, and the electors of Aylesbury in 1704, no such case had arisen until 1837: when the cause of dispute was characteristic of the times. In the last century, we have seen the Commons contending for the inviolable secrecy of all their proceedings: now they are found declaring their inherent right of publishing all their own papers, for the information of the public.

The circumstances of this case may be briefly told In 1836, Messrs. Hansard, the printers of the House of Commons, had printed, by order of that House, the character. reports of the Inspectors of Prisons,-in one of which a book published by Stockdale, and found among

papers affecting

the

prisoners in Newgate, was described as obscene and indecent. After the session, Stockdale brought an action against the printers, for libel. The character of the book being proved, a verdict was given against him, upon a plea of justification: but Lord Chief Justice Denman, who tried the cause, took occasion to say that "the fact of the House of Commons having directed Messrs. Hansard to publish all their parliamentary reports, is no justification for them, or for any bookseller who publishes a parliamentary report, containing a libel against any man." The assertion of such a doctrine, was naturally startling to the House of Commons; and at the next meeting of Parliament, after an inquiry by a committee, the House declared "That the power of publishing such of its reports, votes, and proceedings as it shall deem necessary, or conducive to the public interests, is an essential incident to the constitutional functions of Parliament, more especially of this House, as the representative portion of it." It was further resolved, that for any person to institute a suit in order to call its privileges in question, or for any court to decide upon matters of privilege, inconsistent with the determination of either House, was a breach of privilege.1

Stockdale.

Stockdale, however, immediately brought another Case of action, to which the House, instead of acting upon its own recent resolutions, directed Messrs. Hansard to plead. The case was tried upon this single issue,

whether the printers were justified by the privilege and order of the House; and the Court of Queen's Bench unanimously decided against them.

The position of the Commons was surrounded with

1 Com. Journ., xcii. 418; May's Law and Usage of Parliament, 4th Ed., 170, et seq.

difficulties. Believing the judgment of the court to be erroneous, they might have sought its reversal by a writ of error. But such a course was not compatible with their dignity. It was not the conduct of their officer that was impugned; but their own authority, which they had solemnly asserted. In pursuing a writ of error, they might be obliged, in the last resort, to seek justice from the House of Lords,-a tribunal of equal, but not superior, authority in matters of privilege; and having already pronounced their own judgment, such an appeal would be derogatory to their proper position in the state. They were equally unwilling to precipitate a conflict with the courts. Their resolutions had been set at defiance; yet the damages and costs were directed to be paid! Their forbearance was not without humiliation. It was resolved, however, that in case of any future action, Messrs. Hansard should not plead at all; and that the authority of the House should be vindicated, by the exercise of its privileges.

During the recess of 1839, another action was brought; and judgment having gone against Messrs. Hansard by default, the damages were assessed in the Sheriff's Court at 6007., and levied by the Sheriffs. On the meeting of Parliament in 1840, the Sheriffs had not yet paid over the money to the plaintiff. The House now proceeded with the rigour which it had previously threatened, but had forborne to exercise. Stockdale was immediately committed to the custody of the Sergeant-at-Arms, while Mr. Howard, his solicitor, escaped with a reprimand. The Sheriffs were directed to restore the money, which they had levied upon Messrs. Hansard. Being bound by their duty to the Court of Queen's Bench, they refused to obey this order; and were also committed to the custody of the

Sergeant. In the hope of some settlement of the difficulty, they retained possession of the money, until compelled by an attachment from the Court of Queen's Bench, to pay it over to Stockdale. Much sympathy was justly excited by the imprisonment of these gentlemen,-who, acting in strict obedience to the law and the judgment of the court, had nevertheless endeavoured to avoid a contempt of the House of Commons, which, in the execution of their duty, they were constrained to commit. Punished with reluctance, and without the least feeling of resentment,-they were the innocent victims of conflicting jurisdictions.

In an earlier age the Commons, relying upon their own paramount authority, might even have proceeded to commit the Judges of the Court of Queen's Bench,for which a precedent was not wanting1; but happily, the wise moderation of this age revolted from so violent and unseemly an exercise of power. Confident in the justice and legality of their own proceedings, defied by a low plaintiff in an unworthy cause,—and their deliberate judgment overruled by an inferior court, they yet acted with as much temper and forbearance, as the inextricable difficulties of their position would allow.

Stockdale, while in custody, repeated his offence by bringing another action. He and his attorney were committed to Newgate; and Messrs. Hansard were again ordered not to plead. Judgment was once more entered up against them, and another writ of inquiry issued; when Mr. France, the Under-Sheriff, anxious to avoid offence to the House, obtained leave to show cause before the court, why the writ should not be executed. Meanwhile, the indefatigable Stockdale 1 Jay v. Topham, 1689; Com. Journ., x. 227,

Actions stayed by

statute.

Case of

Gosset.

solaced his imprisonment, by bringing another action; for which his attorney's son, and his clerk, Mr. Pearce, were committed.

At length these vexatious proceedings were brought to a close, by the passing of an Act, providing that all such actions should be stayed on the production of a certificate or affidavit, that any paper, the subject of an action, was printed by order of either House of Parliament. Such an intervention of the supreme authority of Parliament, two years before, would have averted differences between concurrent jurisdictions, which no other power was competent to reconcile. No course was open to the Commons-befitting their high jurisdiction and dignity, -by which the obedience of courts and plaintiffs could be ensured: their power of commitment was at once impotent, and oppressive: yet they could not suffer their authority to be wholly defied and contemned. Hence their proceedings were inevitably marked by hesitation and inconsistency. In a case, for which the constitution has made no provision,even the wisdom of Sir Robert Peel, and the solid learning of Mr. Sergeant Wilde were unequal to devise expedients, less open to objection.2

Another occasion immediately arose for further Howard v. forbearance. Howard commenced an action of tres pass against the officers of the House, who had taken him into custody. As it was possible that, in executing the Speaker's warrant, they might have exceeded their authority, the action was suffered to take its course. On the trial, it appeared that they had remained some

1 3 & 4 Vict., c. 9. Papers reflecting upon private character are sometimes printed for the use of members only.

2 Proceedings printed by the Commons, 1839 (283); Report of Precedents, 1837; Hansard's Deb.,

1847-1849.