QUESTION OF PRIVILEGE—HANSARD AND STOCKDALE.
In the year 1835, a bill was proposed in the house of lords, by the Duke of Richmond, for the purpose of appointing inspectors of prisons. In the report of these inspectors, which was printed by Messrs. Hansard, it was stated, that amongst other books in use by the prisoners, one published by John Joseph Stockdale, in 1827, was of the most disgusting nature, the plates being obscene and indecent in the extreme. In 1836, Stockdale brought an action against Messrs. Hansard for the sale of this report, on the ground that the allegation therein contained about the work was a libel. The defendants pleaded two picas: first, “Not guilty;” and, secondly, “That the words complained of in the declaration were true.” The jury gave a verdict for the defendants on the second plea; and in his charge to the jury, Lord Denman said 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. On the 6th of February, 1837, Messrs. Hansard communicated to the house of commons that legal proceedings had been instituted against them by Stockdale, for the publication of the report, in which he conceived himself to have been libelled. A select committee was then appointed by the house to examine precedents, and report upon the question of its privileges in regard to the publication of reports and other matters. This committee decided in favour of the privilege, which would protect any publication ordered by the house from being made the subject of an action for libel; and the house of commons, on the 30th of May, 1837, passed the following resolutions:—“First, that the power of publishing such of its reports, votes, and proceedings as it shall deem necessary, or conducive to the public interest, is an essential incident to the constitutional freedom of parliament, more especially of this house, as the representative portion of it.—Second, that by the law and privileges of parliament, this house has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; and that the institution or prosecution of any action, suit, or other proceedings, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than a parliament, is a high breach of such privilege, and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon.” The action, however, went on; and Messrs. Hansard pleaded to the declaration to the effect that the publication in question was a privileged one, on the ground that it was issued by the authority of the house of commons. This plea was demurred to as insufficient in point of law; and judgment was given by the court against the defendants, and damages afterwards assessed, which were paid over to the plaintiff. On the 31st of July, 1839, Messrs. Hansard again informed the house that similar legal proceedings were threatened against them on behalf of a Mr. Polack on account of some alleged defamatory matter contained in a report of the state of New Zealand, which had been published by order of the house of commons. In this case they were directed by the house not to take any step towards defending the action with which they were threatened; but subsequently Mr. Polack communicated to the house that proceedings had been commenced without his sanction, and that he had no intention of taking any legal steps in the matter. The matter seemed thus set at rest; but on the 26th of August, Stockdale commenced a third action against Messrs. Hansard, for again publishing the same libel; the sale of each copy of the report containing the alleged libel being, in contemplation of law, a fresh publication of it. This was also communicated to the house of commons; and Messrs. Hansard were again directed that the action should not be defended. In consequence of this direction Messrs. Hansard served Stockdale with formal notice of the resolutions of the house of commons; but notwithstanding this, on the 26th of October, Stockdale filed a declaration in the said action, wherein the damages were laid at £50,000. On the 1st of November intercalatory judgment was signed for want of a plea; and then Messrs. Hansard again caused notices against proceeding with the said action, together with fresh copies of the resolutions, to be served upon Stockdale. The action, however, went on; notice was given that a writ of inquiry of damages would be executed before the sheriff of Middlesex on the 12th of November. This writ was executed, when the sheriffs’ jury assessed the damages at £600. Stockdale then applied to the court of Queen’s Bench for a rule to compel the sheriff to return the writ of inquiry. This was ordered; and on the 23rd of November a writ of fieri facias was issued and lodged with the sheriff, who thereupon took possession of the printing-office, premises, and stock in trade of Messrs. Hansard. On the 16th of December, Mr. Winsland, a builder, purchased of the sheriff goods belonging to Messrs. Hansard to the amount of £695. The sheriff, however, had not paid this money into the hands of Stockdale, when, on the 16th of January, the case of Messrs. Hansard was brought before the commons by Lord John Russell, who presented a petition from them, which prayed for such relief, under the circumstances, as the house should deem proper. His lordship said that it was incumbent upon the house to come to a decision upon the question. There was, he continued, many ways in which they might dispose of it. They might act upon their ancient and undoubted right, and vindicate the violation of their privilege by the ancient mode of commitment. That was the most constitutional course, and the one most consistent with the dignity and privileges of the house. Again, the house could, if it thought fit, direct that Messrs. Hansard should plead in all cases of future action, and thereby bring the question of privilege before the courts. They could abandon all their privileges, confining all their papers to a circulation among the members only; or they might proceed, if they thought it necessary to have the papers circulated for general use, to provide for the settlement of the question by a bill brought in for that purpose. But their present position was one which ought not to continue; and he should move that, John Joseph Stockdale, the plaintiff, Thomas Barton Howard, his attorney, William Evans, the sheriff, Mr. Burchell, the deputy under-sheriff, and the bailiff who acted in this case, be called to the bar of the house, and then it would be in the power of the house to adopt that course which, under all circumstances of the case, it might think proper to pursue. After a long discussion, in which Sir. E. Sugden, the attorney-general, and other members took part, this motion was agreed to by a majority of two hundred and eighty-six against one hundred and sixty-seven. On the following clay, January 17th, the order of the clay for taking into consideration the petition of Messrs. Hansard was read, and Lord John Russell moved that John Joseph Stockdale be called to the bar. He was accordingly called in, and placed at the bar, when the attorney-general interrogated him concerning the facts of the different actions against Messrs. Hansard in which he was plaintiff. After examining him, he was ordered to withdraw; when Lord John Russell moved that John Joseph Stockdale, having brought an action against Messrs. Hansard for the publication of a report ordered by this house to be printed, has been guilty of a high contempt and breach of the privileges of the house. Mr. Law proposed as an amendment that Mr. Stockdale be discharged from his attendance at the bar; but, after an animated discussion, the original question was carried by a majority of two hunded and forty-nine against one hundred. Lord John Russell then moved, that John Joseph Stockdale, for the said breach of privilege, be committed to the custody of the sergeant-at-arms, and that the speaker do issue his warrant for the committal. After a brief discussion, this was carried by a large majority; and on the next day the sheriffs and bailiffs were called in, and, after examination, ordered to attend on the following Monday. On that clay, the 20th of January, Lord John Russell said that it became him now to state the precise course which should be taken in the present stage of the proceedings; and, after going at length into the whole question of privilege, he moved, “that it appeared to the house that an execution in the cause of Stockdale v. Hansard had been levied to the amount of £640, by the sale of the property of Messrs. Hansard, in contempt of the privileges of that house; and that such money then remained in the hands of the sheriff for Middlesex.” If that resolution should be carried, he should move further, “that the said sheriff be ordered to refund the said amount forthwith to Messrs. Hansard.” Mr. F. Kelly opposed this motion, and moved, by way of amendment, the following resolutions:—“That, it appearing to this house that an action has been brought against James Hansard and others, for the publication by them, under an order of this house, of certain papers containing libellous matter upon John Joseph Stockdale, and that judgment has been obtained, and execution issued by due course of law against the said James Hansard and others in such action: it is expedient that the said James Hansard and others be indemnified against all costs and damages by them sustained in respect of such action.” This amendment was supported by Sir Edward Sugden, and opposed by Sir Robert Peel and the attorney-general; and, on a division, the original motion was carried by a majority of two hundred and five against ninety. Subsequently the sheriffs were called in, and committed to the custody of the serjeant-at-arms; and Mr. Howard, the attorney of Stockdale, reprimanded by the speaker at the bar, when he was discharged. The matter, however, was not yet at rest.
On the 27th of January Lord John Russell gave notice that he had received a petition from Messrs. Hansard, stating that a fresh action had been commenced against them by Stockdale, and that a writ of summons had been issued upon them on the 25th of January, by Thomas Burton Howard, as attorney for Stockdale. A motion was carried, ordering the said Thomas Burton Howard, forthwith to attend the house: but it was not till the 6th of February that he could be found, and on that evening he was ordered to be committed to her majesty’s gaol of Newgate. Subsequently, on the 17th of February, Lord John Russell presented another petition from Messrs. Hansard, to the effect, that the fifth action had been renewed against them by Stockdale, for the same cause as before, and praying to be directed as to the course they should pursue. His lordship moved to the effect, that Stockdale, by commencing this fresh action, had been guilty of a contempt of the house, and of a breach of its privileges, and that the sheriffs, under-sheriffs, and others, who should aid in the prosecution of the said action, would be guilty of a contempt of the house, and of a violation of its privileges, and would subject themselves to the severe censure and displeasure of the house. This was carried; and on the following evening Thomas Howard, jun., the attorney in this action, was, on the motion of the attorney-general, committed to the custody of the sergeant-at-arms. In the meantime several motions had been made for the discharge of the sheriffs from prison, on the plea of ill-health. These had been all negatived; but on the 5th of March, Mr. Sheriff Evans was allowed to be set at liberty, being at the same time directed to attend at the bar of the house on Monday, the 6th of April. On the same evening Lord John Russell moved for leave to bring in a bill to give summary protection to persons employed in the publication of parliamentary papers, which was carried by a large majority; and the bill was brought in and read a third time on the 12th of the same month. On the 31st of March the sergeant-at-arms appeared at the bar, and acquainted the house that on Saturday last the assistant-sergeant and four other officers of the house had been served with notice that an action had been commenced against them in the court of Queen’s Bench, at the suit of Thomas Burton Howard. Under the impression that a verdict would certainly be given for the defendants, the attorney-general moved that they should be allowed to appear and defend the action; a motion which, after a few words in opposition by Viscount Howick, was carried by a majority of one hundred and forty against ninety-one. On the 6th April the bill relating to the protection of persons employed in the publication of parliamentary papers was sent up to the lords; and, after making some amendments in committee, the lords passed it and returned it to the commons, who agreed to the amendments; and on the 14th April the royal assent was given to it by commission. On the 15th of April, on the motion of Sir R. Inglis, Mr. Sheriff Evans and Mr. Howard, jun., were discharged. Messrs. Thomas Burton Howard, sen., and Stockdale were still left in Newgate; but, on the 15th of May, on the motion of Mr. T. Duncombe, they were liberated likewise, and thus terminated this much-agitated and important question. In the course of the discussion in the commons the ablest lawyers spoke in favour of the particular privilege of free publication claimed by the house, as essential to the due discharge of its functions as a constituent branch of the legislature; but many of them dissented from the doctrine that it was a breach of their privilege to bring them under the cognizance of a court of law. Above all, they thought that having once submitted the case to the court of Queen’s Bench, by pleading in the action, they were bound to respect the judgment of the court; and if they considered it erroneous, to bring it under the review of a court of error, in the legal and constitutional mode, and not proceed by arbitrary imprisonment against officers who merely acted in their ministerial capacity, and who would have stood exposed to the process of attachment, if they had refused to obey the writs which the court called upon them to execute. Sir William Follett, indeed, broadly stated that the commons were enforcing their privileges in a manner that could not be maintained; that they were assuming powers which the constitution did not give them; and that he was not able to vote for any of the committals which had taken place. He did not deny that the house was the exclusive judge of its own privileges, and that they had the power of committal; but he did not think that if a servant of the house should be questioned for any act done under their orders, that they had a right to deprive the courts of law of their jurisdiction over that servant.