PART IV. On the trial of an action for a libel contained in a newsCHAPTER IX. paper report of what occurred before one of the Commissioners of Inquiry respecting Corporations, Pattison, J., ruled that evidence of the accuracy of the report could not be given as a matter of justification, though it might be given in mitigation of damages. (a) Case of Stockdale v. CHAPTER X. PUBLICATION OF PARLIAMENTARY PAPERS. WITH regard to papers published by order of either House of Parliament, the decision of the Court of Queen's Bench, in the case of Stockdale v. Hansard, (b) led to an important alteration of the law by Act of Parliament. The Court of Queen's Bench decided, in that celebrated case, that it was no defence to an action for publishing a libel, that the defamatory matter was part of a document which was, by order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the House, and which was afterwards, by order of the House, printed and published by the defendant, and that the House of Commons had resolved, declared, and adjudged "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 to the Commons House of Parliament, as the representative portion of it." The libel complained of in this case by the plaintiff (a bookseller and publisher of books) was contained in a book entitled "Reports of the Inspectors of the Prisons of Great Britain," and in a printed paper containing a copy of the reply of two of the Inspectors of Prisons for the Home District to a report of the Court of Aldermen, to whom it had been referred, to consider the first report of the inspectors, so far as related to the gaol of Newgate; and the libel consisted in statements made by the inspectors, with reference to a physiological and anatomical book published by the plaintiff, to the effect that it was of a most disgusting nature; that the plates were indecent and obscene in the extreme, and not calculated only to attract the attention of (a) Charlton v. Watton (6 C. & P. 385). (b) 9 A. & E. 1. persons connected with surgical science; that the inspectors had applied to several medical booksellers, who all gave it the same character, and described it as one of Stockdale's (the plaintiff's) obscene books. The defendants, Messrs. Hansard, printers to the House of Commons, in a long plea, which was demurred to, pleaded that the report of the Inspectors of Prisons was laid before the House of Commons pursuant to Act of Parliament, and that the House had ordered the report to be printed; that a copy of the report made by the Committee of the Court of Alderman, had also, by the order of the House of Commons, been laid before it and printed; that the reply of the inspectors to this report had also been ordered by the House to be laid before it and printed; (a) that the defendants had published the report of the inspectors and their reply by the authority of the House of Commons, and as directed and ordered by the orders and resolutions of the House, and not otherwise; and, further, that the House had resolved, declared, and adjudged, 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 to the Commons House of Parliament as the representative portion of it. After long and elaborate arguments, lasting several days, the court held that the plea set out no defence to the action. The judgments, which are proportionately long and elaborate, and deal fully with the important constitutional questions involved in the case, will well repay a careful perusal. (b) With regard to the first ground of defence relied on in argument, viz., that the grievance complained of was an act done by order of the House of Commons, a court superior to any court of law, and none of whose proceedings were to be questioned in any way, Lord Denman, C.J., said :(c) "It is a claim for an arbitrary power to authorize the commission of any act whatever, on behalf of a body which, in the same argument, is admitted not to be the supreme power in the state. The supremacy of Parliament, the foundation (a) The reports were printed, not only for the use of members of the House, but also for public sale, the proceeds to be applied to the general expenses of printing by the House. (b) Cockburn, C.J., says of the masterly judgments of Lord Denman and his colleagues in this case, that they "will secure to the judges who pronounced them admiration and reverence so long as the laws of England and a regard for the rights and liberties of the subject shall endure:" (Judgment in Wason v. Walter, L. Rep. 4 Q. B. 86; 19 L. T. N. S. 416; 38 L. J. 40, Q. B.). (c) 9 A. & El. 107. PART IV. ་ CHAPTER X. PART IV. on which the claim is made to rest, appears to me comCHAPTER X. pletely to overturn it, because the House of Commons is not the Parliament, but only a co-ordinate and component part of the Parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law or place any one beyond its control. The proposition, therefore, is wholly untenable, and abhorrent to the first principles of the constitution of England." As to the next ground of defence, viz., that the defendant committed the grievance by order of the House of Commons in a case of privilege, and that each House of Parliament is the sole judge of its own privileges, Lord Denman, after referring generally to the subject of privilege, observed, "For speeches made in Parliament by a member, to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete immunity. For any paper signed by the Speaker by order of the House, though to the last degree calumnious, or even if it brought personal suffering upon individuals, the Speaker cannot be arraigned in a court of justice. But if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher. So, if the Speaker, by authority of the House, order an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles's warrant for levying ship-money could justify his revenue officer." The learned judge added in a subsequent portion of his judgment:(a) "It can hardly be necessary to guard myself against being supposed to discuss the expediency of keeping the law in its present state, or introducing any and what alterations. It is, no doubt, susceptible of improvement; but the improvement must be a legislative act. If we held that any improvement, however desirable, could be affected under the name of privilege, we should be confounding truth, and departing from our duty; and if, on such considerations, either House should claim as matter of privilege what was neither necessary for the discharge of their proper functions, nor ever had been treated as a privilege before, this would be an enactment, not a declaration; or, if the latter name were more appropriate, it would be the declaration of a general law, to be disregarded by the courts, though never, I hope, treated with contempt." The subsequent history of this celebrated case, which (a) 9 A. & El. 153. decided that an order of the House of Commons cannot render lawful that which is contrary to law, and that still less can a resolution of the House supersede the jurisdiction of a court of law by clothing an unwarranted exercise of power with the garb of privilege, (a) is as follows: PART IV. CHAPTER X consequent on The plaintiff having recovered judgment against the Proceedings defendants, a writ of inquiry was executed; damages were decision in Stockassessed, and a fi. fu. issued; and, on the sheriff returning that dale v. Hansard. he had the money in court, he was called upon to show cause why the money should not be paid to the plaintiff. It was stated on the sheriff's behalf, that the House of Commons had passed the following resolutions: "That it appears to this House that execution in the cause of Stockdale v. Hansard has been levied to the amount of 6401. by the sale of the property of Messrs. Hansard, in contempt of the privileges of this House, and that such money now remains in the hands of the Sheriff of Middlesex. That the said sheriff be ordered to refund the said amount forthwith to Messrs. Hansard." The House also resolved that the sheriff had been guilty of a contempt and breach of the privileges of the House, and that he should be committed to the custody of the Serjeant-at-Arms, which was done. Notwithstanding this, the Court of Queen's Bench made absolute the rule, commanding the sheriff to pay over the money to the plaintiff. Afterwards, a rule nisi was obtained for an attachment against the sheriff for not paying over the money, and the rule was made absolute, Lord Denman, C.J., observing that the court, having put the law in motion for the plaintiff, was bound to enforce it for him, and there was unfortunately no other mode of doing so than the proceeding adopted. The two persons who filled the office of sheriff of Middlesex, having been taken into custody of the Serjeant-at-Arms pursuant to the resolution of the House of Commons, sued out a writ of habeas corpus, to which the Serjeant-at-Arms made return-that he had taken them into custody and detained them by virtue of a warrant from the Speaker of the House of Commons, reciting that the House had resolved that they had been guilty of a contempt and breach of the privileges of the House, and that they should be committed to the custody of the Serjeant-at-Arms, and ordering him to take them into custody. The Court of Queen's Bench held the return sufficient, and the sheriffs were remanded to custody; but Lord Denman was careful to state that he adhered in all respects to the view of the law laid down in (a) Per Cockburn, C.J., Wason v. Walter (L. Rep. 4 Q. B. 87; 38 L. J. 40, Q. B.; 19 L. T. Ñ. S. 416). Stockdale v. Hansard, as to defamatory publications issued by order of the House of Commons. This dispute between the House of Commons and the Court of Queen's Bench led to the passing of the Act 3 & 4 Vict. c. 9, entitled "An Act to give summary | protection to persons employed in the publication of Parliamentary papers." This Act recites that "it is essential to the due and effectual exercise and discharge of the functions and duties of Parliament, and to the promotion of wise legislation, that no obstructions or impediments should exist to the publication of such of the reports, papers, votes, or proceedings of either House of Parliament, as such House of Parliament may deem fit or necessary to be published:" and that "obstructions or impediments to such publication have arisen, and hereafter may arise, by means of civil or criminal proceedings being taken against persons employed by, or acting under the authority of, the Houses of Parliament, or one of them, in the publication of such reports, papers, votes, or proceedings; by reason and for remedy whereof it is expedient that more speedy protection should be afforded to all persons acting under the authority aforesaid, and that all such civil or criminal proceedings should be summarily put an end to and determined in manner" provided by the Act. Sect. 1 provides for the stay of all proceedings commenced against persons for publication of papers printed by order of either House of Parliament, upon delivery to the court or a judge of a certificate and affidavit, to the effect that such publication is by order of the House. It enacts that "it shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding, commenced or prosecuted in any manner soever, for or on account or in respect of the publication of any such report, paper, votes, or proceedings, by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament, to bring before the court in which such proceeding shall have been, or shall be, so commenced or prosecuted, or before any judge of the same (if one of the superior courts in Westminster) first giving twenty-four hours' notice of his intention so to do to the prosecutor or plaintiff in such proceeding, a certificate 1 under the hand of the Lord High Chancellor of Great Britain, or the Lord Keeper of the Great Seal, or of the Speaker of the House of Lords, for the time being, or of the Clerk of the Parliaments, or of the Speaker of the House of Commons, |