Restriction of Publication.

.79

tion, or for any court or tribunal to assume to decide ' upon matters of privilege, inconsistent with the 'determination of either House of Parliament thereon,

is contrary to the law of Parliament, and is a breach ' and contempt of the privilege of Parliament.' The struggle terminated in the passing, in the year 1840, of an Act 2 which recited that it is essential to the 'due and effectual exercise of the functions and duties of Parliament, and to the promotion of wise legisla6 tion, that no obstructions or impediments should ' exist to the publication of such of the reports, papers, 6 votes, or proceedings of either House of Parliament, as such House of Parliament may deem fit or neces6 sary to be published;' and enacted that it should be a sufficient defence, in case of any proceedings arising from such publication, to produce a certificate under the hand of the Lord Chancellor, or the Speaker, as the case may be, to the effect that the publication took place by order or under the authority of the House of Lords or the House of Commons.

The other side of the same privilege in respect to the publication of its proceedings, in accordance with. which the House of Commons can restrict as well as enforce publication, was illustrated in the year 1875. In the year 1837 the House of Commons had agreed to a resolution which forbade in general the publication of evidence or of documents brought before Select Committees of the House. On April 9, 1875, the Times' and the Daily News' published, under the heading 'Committee of Foreign Loans,' evidence received by such a Committee, which was then sitting. This evidence, 1 May's Parliamentary Practice, chap. v. 23 and 4 Victoria, chap. ix.

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as published, included a letter to Mr. Lowe, M.P., from M. Herran, Honduras Minister in Paris, read to the Committee by Mr. Kirkman Hodgson, M.P., and which reflected seriously (and, as it appeared, unjustly) on the character and conduct of a member of the

House, Capt. Bedford Pim. The publication of the defamatory matter was made the subject of urgent complaint in the House, and the printers of the two newspapers were summoned to appear at the bar of the House, and were in attendance on the day named for their appearance. After considerable debate on that day-in the course of which Mr. Disraeli, the leader of the House, argued that, inasmuch as there was no dispute whatever either about the fact of an offence having been committed against the resolution of 1837, or as to the personal innocence and good faith of the gentlemen who had been summoned, it was not desirable to proceed any further in the matter-it was decided to dispense with their further attendance, and to communicate with the Committee of Foreign Loans in order to trace the mode in which the publication had been brought about, and to prohibit such acts for the future.

This last-mentioned debate gave rise to an incidental discussion on the general right of strangers to be present in the House during its sittings. There was no doubt that strangers, including reporters, had no other constitutional right to be present than such as the House itself might from time to time choose to concede to them. Nevertheless great inconvenience had been experienced on some occasions, and especially in the course of this debate, from the rule that all strangers might at any moment be excluded, on a single member

Exclusion of Strangers.

81

'taking notice' that strangers were present. A recent resolution has introduced a far more convenient rule, without surrendering the constitutional right of the House to absolute privacy. Strangers can now only be excluded by a vote of the House on the question being put by the Speaker, no discussion being allowed. This solution of the problem was found serviceable in the Session of 1878, when the personal character of an Irish landlord who had been recently murdered was incidentally brought under discussion. As the circumstances afford one of the earliest illustrations of the working of the new rule, and explain its true use and limits, it is worth while recalling them with some precision, as they are detailed in Hansard.

On April 12, 1878, Mr. O'Donnell had moved, with reference to the murder of the late Lord Leitrim, that the action of the Government in Donegal is unconsti'tutional, unsuited to promote the ends of justice, and 'calculated to foster disbelief in the impartiality of the 'law.' In the course of the debate, Mr. O'Donnell put, by way of illustration, the case of a landlord known throughout all the northern country of England 'as the bad Earl,' and said: If it was known throughout all

the country, beyond the possibility of a doubt, com'mented on in the public press, denied nowhere and by none, that he had placed the alternative of eviction or 'dishonour before the peasant-girls on his property, and that when his infamous advances had been slighted, he had carried out his threat of eviction '-At this point Mr. King Harman said: 'Mr. Speaker, I beg to say 'that I see strangers.' The Speaker said: The honourable member having taken notice of the presence of 'strangers, I am bound to take the course I have taken

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" upon a former occasion, and to put the question at once to the House whether strangers be ordered to ' withdraw.' The question was put, and the House divided, the Ayes being 57, and the Noes 12, and the majority for the exclusion being therefore 45. The record in Hansard is simply: 'After this division, 'strangers were excluded, and it was understood that 'the debate proceeded for some hours :-at the end of 'which time, the question was again proposed that Mr. 'Speaker do now leave the chair." It may be observed that the next morning's papers contained a report of what took place while strangers were professedly excluded, though not in any detail, and not in the ordinary course of the reports of Parliamentary proceedings.

It may be doubted, however, whether even under the newly-modified rule, the practice of excluding strangers serves the end in view,-that of securing real secresy and perfect independence. In presence of the modes of communication and the allurements to publication now everywhere diffused, it is scarcely possible that some account of lengthened, complicated, and highlyinteresting proceedings shall not leak out; and the more grave the inquiry, or the more deeply it affects personal character, the more important is it that no merely partial utterances shall go forth unchallenged to the public, and that every member of the House shall conduct himself, not as belonging to an irresponsible club, but as being invested with the dignity of a public judicial officer.

The questions of privilege above noticed introduce a subject which has already been seen to be closely con

Hansard, vol. ccxxxix. 1262.

Right of the House to Punish for Contempt. 83

nected with all the privileges of the Houses of Parliament: that is, the modes by which the House, acting in a judicial capacity, can practically enforce its sentences, either upon its own members, or upon other persons. The offence complained of as a contempt of the House may be committed either by members of the House or by strangers, and directed either against individual members of the House, or against the House itself in its corporate capacity. It has always been a matter of great controversy how far Courts of Justice. are entitled to review the judgments of the Houses, for the purpose of ascertaining the extent of the privilege invaded, and determining whether the limits of jurisdiction have been strictly observed. The case of Howard versus Gossett,' which arose in 1840 out of the case of Stockdale versus Hansard, (the plaintiff being Stockdale's solicitor, and the defendant the Serjeant-at-Arms,) presents the most recent occasion on which the principles relating to the constitutional right of the Commons to commit and punish have been judicially acknowledged and explained. The Court of Exchequer Chamber reversed the judgment of the Court of Queen's Bench, which had decided in favour of the plaintiff. The Court of Exchequer Chamber asserted that the privileges of the House involved in the inquiry before the Court were indisputable, because, 1st, that House, which forms the Great Inquest of the nation, has a power to institute inquiries, and to order the attend'ance of witnesses, and in case of disobedience . . bring them in custody to the bar for the purpose of

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' 10 Q. B. 359. 1 Car. and M. 380. Broom's Constitutional Law, notes to Stockdale v. Hansard.