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.
AFFAIRS OF CHINA, ETC.
During the last year a serious collision took place between the Chinese authorities and the British subjects at Canton. This arose out of the contraband traffic in opium. The government of China resolved to put an end to the commerce altogether, and with this view an imperial commissioner arrived at Canton. He resorted at once to decisive measures, by demanding that every particle of opium on board the ships should be at once delivered up to the government to be destroyed; at the same time requiring a bond that the ships would never again dare to introduce that article. In the event of any opium being thereafter brought, the goods were to be confiscated, and the parties were to submit to death. Should the foreigners fail to comply with these requisitions, Commissioner Lin threatened that they would be overwhelmed by numbers and sacrificed. The whole foreign community was thrown into a state of the deepest distress at these demands; and the chief superintendent, Captain Elliot, considered it to be his duty to take his own countrymen under his protection. He issued a circular, requiring the surrender into his hands of all the English opium actually on the coast of China. On the 3rd of April, however, 20,283 chests of opium were delivered over to the commissioner, from the ships which had assembled for that purpose below the Bocca Tigris. Some merchants had been imprisoned by the Chinese authorities; but on the 4th of May leave was given for all to quit Canton with the exception of sixteen individuals, who ultimately took their departure with injunctions never to return. Captain Elliot immediately ordered every subject of her majesty out of the river; but he did not himself remove from Canton until the 25th of May, when the proscribed persons had been released, and there remained no other British subject in jeopardy. When they were out of danger, he immediately wrote to the governor-general, detailing the course of violence and spoliation which had broken up this great trade; and at the same time applied for armed vessels from the Indian station to protect life and property. Later in the year the breach was widened by an affray which took place at Macao, between some English sailors and Chinese villagers, in which, unfortunately, one of the latter was killed. Commissioner Lin demanded of Captain Elliot that the homicide should be given up; but this was refused, and in consequence an edict was issued by Lin prohibiting any provisions or other articles being supplied to the British at Macao. The British superintendent subsequently removed his residence to Hong Kong, off which lay the Volage frigate, commanded by Captain Smith. At the latter end of the year Commissioner Lin issued an edict against the importation of any British goods, in which he ordained that a bond should be required from any vessel entering the port, certifying that it did not contain any British property on board, and consenting to the confiscation of the ship and cargo, if any such should be therein discovered. In his edict, Commissioner Lin gave all foreigners to understand that it was no use to deceive the Chinese; for there were skilful translators and interpreters among them, who would certainly ascertain the country from whence they came. In this state of affairs. Captain Elliot sent a petition to Commissioner Lin,’ entreating for the restoration of the trade with Canton, until he received further advice from England. The commissioner replied by a haughty refusal; enumerating all the offences of which, in the eyes of the “great pure dynasty,” the British had been guilty; and declaring that, until the murderer of the Chinese was given up, there could be no intercourse allowed between the two nations. But notwithstanding this peremptory refusal, a temporary adjustment of the matters in difference so far took place, that Commissioner Lin permitted the commerce of Great Britain to be carried on below the Bocca Tigris until further instructions should be received from England. The high-commissioner still insisted that the captains of all vessels which traded with Canton should sign the required bond; and this was unfortunately consented to by Mr. Warner, master of the ship Thomas Coutts. The consequence of this consent was, that Commissioner Lin determined to break off the arrangement concluded, unless the whole British shipping which was re-entering the Bocca Tigris should agree to the same terms: if not, the vessels were again to depart, or be destroyed. Matters now proceeded to extremities; and the Chinese soon received a lesson from British artillery. Finding that the inhabitants of the celestial empire were preparing to attack the fleet, and that Admiral Kwan lay in considerable force near Chuenpee, two English frigates, the Volage and Hyacinth, were removed to that neighbourhood. Captain Elliot now prepared another address to Commissioner Lin, and then went on board the Volage frigate. That vessel took up her station, on the 2nd of November, not far below the first battery, where an imposing force of war-junks and fire-vessels was collected. On the 3rd, the Chinese squadron, consisting of twenty-nine sail, anchored close to the British vessels, and their attitude became so menacing that Captain Smith, of the Volage, resolved to compel them to return to their former anchorage. A brief action took place, which told with terrible effect on the celestials: one war-junk blew up at a pistol-shot distance from the Volage, three were sunk, and several others water-logged. In about half-an-hour Admiral Kwan and his squadron retired in great distress to their former anchorage, no obstruction being offered to their retreat. But notwithstanding their palpable defeat, as the English ships soon after set sail for Macao, the Chinese claimed the victory. But this was only the beginning of their sorrows. At the close of the year the English government determined to send an expedition into the Chinese seas, which should be sufficient to attain all the ends we had in view, and compel the great pure dynasty to acknowledge the principles of international law which were acted upon by all the civilized nations of the earth. This armament, which consisted of eight ships of war with frigates, transports, and steamers, arrived at its place of rendezvous at Singapore, in the month of April of the present year. It was placed under the command of Admiral Elliot; Commodore Sir J. J. Gordon Brewer was next in command, and Major-General Burrell had the command of the military force. Previous to this an edict had been issued, warning all foreign vessels from anchoring near the devoted English ships, lest they should be involved in the destruction preparing for the latter—“lest the gem should be consumed with the common stone.” The first arrival of this armament in the Canton river was her majesty’s ship Alligator, Captain Kuper, on the 9th of June. Previous to this the Chinese authorities at Canton had sent a boat-load of poisoned tea, packed in small parcels, to be sold to the English sailors. This boat was captured by Chinese pirates, and her cargo sold to their own countrymen, many of whom died in consequence. A proclamation was issued, by the Chinese authorities, offering rewards to all who should destroy the English, and who should be able to capture an English man-of-war. An attempt was indeed made to burn the British shipping, but this happily failed, and then Sir J. J. Gordon Brewer gave public notice, that on and after the 28th of June, a blockade of the river and port of Canton would be established. The commodore, however, with several ships, sailed northward in the direction of Cliusan, and he was followed on the 28th by Admiral Elliot and Captain Elliot. The Chinese authorities now bestirred themselves vigorously to meet the danger. By a proclamation issued on the 2nd of July, the people were called upon to unite heart and hand with the government in opposing the barbarians. All the proclamations and precautions of the Chinese, however, were vain. On Sunday, the 5th of June, the British captured Chusan: for the first time British cannon wrested from his celestial majesty a portion of his dominions.
The policy of government with reference to the affairs of China was made the subject of a series of condemnatory resolutions in parliament. These were brought forward by Sir James Graham on the 7th of April, who introduced the subject by calling the attention of the house to the magnitude of the interests involved in our relations with China. The right honourable baronet then went into a detailed history of the disputes of which a brief account is given above; and finally concluded by moving, that “it appears to the house, in consideration of the papers relating to China, presented to this house by command of her majesty, that the interruption in our commercial and friendly intercourse with that country, and the hostilities which have since taken place, are mainly to be attributed to the want of foresight and precaution on the part of her majesty’s present advisers in respect to our relations with China; and especially to their neglect to furnish the superintendent at Canton with powers and instructions calculated to provide against the growing evils connected with the contraband traffic in opium, and adapted to the novel and difficult situation in which the superintendent was placed.” Mr. Macauley replied to Sir James Graham; and a long debate ensued, in which the motion was supported by Sir W. Follett, Messrs. Thesiger, Sidney Herbert, W. E. Gladstone, and G. Palmer; and opposed by Sirs George Staunton, S. Lushington, and J. C. Hobhouse, and Messrs. Hawes, C. Buller, and Ward. The debate was closed by powerful speeches from Sir Robert Peel in support of the motion, and Viscount Palmerston against it. On a division the motion was negatived by a majority of two hundred and seventy-one against two hundred and sixty-two.