HOUSE OF LORDS.

Friday, May 18, 1810.

[SECOND REPORT ON PROCEEDINGS RESPECTING SIR F. BURDETT'S NOTICES.] Mr. D. Giddy brought up a second Report from the committee appointed to consider the notices of action sent by sir F. Burdett. The Report was read at the table by the clerk, and will be found in the Appendix to the present volume. On the motion, that it be laid on the table and printed,

Mr. Horner expressed his surprise that the Committee should have thought it necessary to go into such details with respect to a right, which the House undoubtedly bad exercised from time immemorial. He did not think the Committee were entitled to go into an argumentative detail upon the subject, and if such a report should be received without any notice being taken of it, the foundation of the privilege might be brought into doubt, where otherwise there could have been no reasonable ground whatever of doubt on the subject. He believed this was the first time that a Committee appointed for an inquiry into the privileges of the House had resorted to the authority of the courts of law and of judges. He believed it had been the constant maxim of the most enlightened men who lived in times when the principles of liberty were at least as well understood and acted upon as now; men who had defended the liberties of the people through the privileges of that House, that their privileges were not to be judged of by analogy to common law proceedings, nor to be founded upon the authority of

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judges.-But not content with adverting. to common law proceedings, and the authority of judges, the committee had gone into a detailed reasoning upon the general expediency of this privilege. This did appear to him to be going beyond their authority :-They should have looked at the journals, and stated simply in their report, what was to be found there as to the privileges of the House; they ought not in his opinion to have entered upon general discussion as to the question of utility. They would not, he believed, be borne out in the course they had taken by the practice of the best times. Then they said that the existence of the privilege had been assented to in a conference with the House of Lords: this did appear to him an improper mode of supporting the privileges of the House of Commons. Their dissent could not have weakened the real foundation of these privileges.

Mr. Wilberforce being a member of that committee, could not help expressing his dissent from the charges which had been urged against it. He could not very well understand the reason why the charges were made, till some light had broke in upon him, as to the motives from which several gentlemen had refused to give their assistance at the committee, when he considered the state of parties. They certainly had an opportunity by that conduct of raising objections to the proceed ings of their political adversaries. really it did appear very strange to him, that it should be said, that the rights of the House had been at all compromised by a reference to a declaration of the House of Lords distinctly admitting the

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gal authority in that House had objected to the privilege, he ought to have then stood up in its defence. There was no force in the observation, that the committee ought to have confined itself to precedents. They had been expressly directed to give an opinion. But the objection ought to have been made before, if at all; for the committee had, in their former report, given ample notice of the manner in which they intended to proceed in their next. He then contended that the committee had done perfectly right in reporting the admission of the Lords and the decisions of the courts of law. If the opinions of the Lords and the authority of the courts of law had been in opposition to the privilege, and the House, notwithstanding, was convinced of the necessity of its existence, then they ought solely to look to themselves. But when the Lords, in a case of conflict with the House of Commons, admitted the privilege to the extent now claimed, that was surely a most important fact in support of the claim and one fit to be stated. He did not understand that sort of pride of independence which should induce them to look solely to themselves, when the House of Peers, the courts of law, and all the history of the country, as far as it bore on the question, was in their favour. The objection to reporting on the expediency was equally unfounded. The strongest argument against the privilege was this, that privileges were bounded by their necessity that this was not necessary, and therefore that it ought not to exist. The committee was therefore called upon to enter into the propriety and expediency of the existence of such a privilege; and having done so, they had only discharged their duty.

Mr. Lockhart said, that, in his opinion, the most objectionable passage in the report, was that which had not yet been noticed. He alluded to that part which stated, after citing certain law authorities in favour of their privileges, that "thereby their privileges had been confirmed." This passage he considered so exceptionable and so derogatory from the dignity of that House, that he should vote for referring back the report to the committee.

Lord Milton said, that he felt, a good deal, the objection made by his hon. friend who had just sat down, to the report; for, if they went to courts of law for the confirmation of their privileges,

they would weaken them in the very act. If they considered the decisions of such courts, when coinciding with their privileges, as a necessary sanction; they must consider such decisions, when made in contradiction to their privileges, a deterioration of them. He thought the entire proceeding derogatory from the dignity and the privileges of the House; they shewed a kind of doubt and apprehension, as if it was necessary that they should be confirmed by other judicatures, instead of being asserted and maintained by their own authority.

Mr. Whitbread said, that even without considering whether, as the hon. gent. under the gallery had justly said, the terms of the report were derogatory to the dignity of the House, he would put it to the members of the Committee themselves, whether they would wish it to go to the printer in its present form? He found upon looking over the appendix, that it was not in a state to be intelligible to any printer. There was so many interlineations and erasures, that he did not know how any person could proceed in the undertaking; there were erasures by knife, by pen, and by pencil, in-so-much that it was all irregularity and confusion. He was sure that it was not and could not be the intention of the Committce to mislead the House, or to be guilty of any misquotation, however indirect; but he could not help observing, that the opinion of Lord Chief Justice Wilmot, alluded to in the report, was not cited as an opinion which had never been delivered; it appeared there with all the solemnity and weight of a judgment actually passed, though even he (Mr. W.) uninformed as he was upon such subjects, was perfectly aware that it was an opinion not delivered, but said to have been prepared to be delivered, though in reality, never pronounced. It was, he understood, several years after his death, that it met the light. He would ask, therefore, did the Committee intend that it should be published in this manner? He was sure that they did not, because he was sure that they did not mean to deceive. He denied in toto that such a paper could be quoted as true legal authority; or, at least, that it should be considered of equal weight with a judgment actually pronounced in a court of justice. He enumerated several instances. of the inaccuracy of the Appendix; in one instance, there appeared the word analogy" followed by two blank leaves;

in another, there were parts of sentences expunged, leaving parts that were unintelligible behind them. It was surprising that gentlemen sitting in a Committee on such a subject, should come forward to that House, with such a farrago. If a bill was offered in such a state to the Speaker, he would refuse to receive it; so should they refuse this report, if they had any consideration for their own character, or for that of the Committee. He found in one place, that, out of eleven precedents, originally enumerated, five were struck out. In another, all but the dates were erased. In short, he had only to request, that before gentlemen made up their minds to vote for the printing of the report, they would take the trouble to look a little into the intended publication. Mr. D. Giddy said, that the Committee, conceiving that the report would be expected from them very soon, had prepared it with all possible expedition. They had turned over many of the Journals, and collected a number of precedents, from which they were afterwards to make a selection. This necessarily introduced many erasures. However, as they had no choice but to make their report that night, or postpone it till Monday, it appeared to them the better course to deliver it in as it was. If the House agreed to the motion for its being printed, he and the other gentlemen of the Committee would have felt themselves called upon to correct it, which he flattered himself they would have done in such a manner, that it would have reflected no disgrace, either upon them, or upon the House.

Mr. C. W. Wynn thought the objections of his hon. friend went, not merely to the form, but to the substance of the report. He admitted that the paper of Lord Chief Justice Wilmot was entitled to great weight, as containing the opinion of a wise and upright man; but he did not think it consistent with the dignity of that House to quote the opinion of any individual, however eminent, in support of their privileges. The authority for them to resort to upon such occasions was the declaration of their predecessors-the decisions of that House. It was not to analogies, therefore, they were to resort; the ground upon which they must stand or fall, was the practice of their ancestors. With respect to the notion of correcting the report previous to its publication, he did not believe that the Committee possessed any such power, unless it was to be recommit

ted by a vote of that House, which he would propose. He accordingly moved, That the report should be re-committed.

The Speaker suggested, that the report should be taken off the table again. It certainly was drawn up in a manner that did not entitle it to be received, and it ought unquestionably to be re-committed. Sir S. Romilly could not think that even if the Committee had a right to defend the privileges of the House by analogies from the courts of law, they were therefore at liberty to quote the private opinion of a judge, which had never been delivered; and which, though previously entertained, was liable to be altered upon consultation with his brethren. He could not but think it right for the Committee to have referred to the decisions of courts of law; but when it asserted that committals for contempt, even by courts of sessions, were not cognizable elsewhere, and supported that doctrine upon authorities, it should give the authorities against it also. The case of Bushell, he considered as most important; In that case, the whole of the jury was committed for having given a verdict contrary to the opinion and direction of the judge. If that jury was committed for contempt, did the committee think that such committal would not have been cognizable in other courts? He concluded with accounting for. his not having attended the Committee, by stating that, as he differed in sentiment from those of whom it was composed, and could not have the vanity of expecting that he would be able to alter their sentiments he thought it better to absent himself.

The Solicitor-General expressed his regret, that his hon. and learned friend had thought it necessary to absent himself from the committee. It appeared to him, that the best way to arrive at a true judgment in such cases was, by canvassing different opinions. The question upon which the committee was to exercise its judgment and to which to direct its inquiries, was, whether the House had a right to commit for contempt! He regretted it for a most unfortunate circumstance, that his hon. and learned friend, who stood almost alone upon the occasion, should call in question one of the best established principles in that House--a principle which stood upon the united grounds of reason, authority, and analogy. He remembered, upon a late occasion, that his hon. and learned friend had ransacked precedents, not to establish a principle