STOCKDALE against HANSARD.

ACTION OF LIBEL BY JOHN JOSEPH STOCKDALE AGAINST JAMES HANSARD, LUKE GRAVES HANSARD, LUKE JAMES HANSARD, AND LUKE HENRY HANSARD, TRIED BEFORE LORD DENMAN, C.J., AND A SPECIAL JURY ON FEBRUARY 7, 1837, IN THE COURT OF KING'S BENCH AT WESTMINSTER. (Reported in 7 C. & P. 731, 2 M. and Rob. 9, and in Report of Select Committee on Publication of Printed Papers, 8th May 1837, Appendix No. 1, p. 65.)

ARGUMENT AND JUDGMENT ON A DEMURRER SUGGESTING THAT DOCUMENTS PUBLISHED BY ORDER OF THE HOUSE OF COMMONS WERE PRIVILEGED, IN THE COURT OF QUEEN'S BENCH AT WESTMINSTER, BEFORE LORD DENMAN, C.J., LITTLEDALE, PATTESON, AND COLERIDGE, J.J., ON APRIL 23, 24, 25, AND MAY 28 AND 31, 1837. (Reported in 9 A. & E. 1, 2 P. & D. 1, 3 Jur. 905, Campbell's Speeches, 136, and in First Report of Select Committee on Stockdale v. Hansard, Appendix I.) MOTION TO STAY WRIT OF INQUIRY BEFORE LITTLEDALE, J., NOVEMBER 9 AND 11, 1839. (Reported in 8 Dowl. P.C. 148, 3 Jur. 1030, and in Special Report by Kennedy.)

ARGUMENT AND JUDGMENT ON MOTION FOR PAYMENT OVER BY SHERIFF OF PROCEEDS OF EXECUTION, IN THE COURT OF QUEEN'S BENCH AT WESTMINSTER, BEFORE LORD DENMAN, C.J., LITTLEDALE, WILLIAMS, AND COLERIDGE, J.J., JANUARY 11 AND 22, 1840. (Reported in 11 A. & E. 253, 3 P. & D. 330, 8 Dowl. P.C. 522.)

ARGUMENT AND JUDGMENT ON MOTION FOR ATTACHMENT OF SHERIFF FOR NON-PAYMENT OF PROCEEDS OF EXECUTION, IN THE COUrt of QUEEN'S BENCH AT WESTMINSTER, BEFORE LORD DENMAN, C.J., LITTLEDALE, AND WILLIAMS, J.J., JANUARY 27 AND 30, 1840. (Reported in 11 A. & E. 269, 3 P. & D. 341, 8 Dowl. P.C. 532.)

Action against the printers to the House of Commons for libels on the plaintiff contained in Parliamentary papers. The defendants pleaded the previous authority and order of the House of Commons for the publication, and a resolution of the House (after action brought) declaring and adjudging its power to authorise the publication of such of its reports, votes, and proceedings as it should deem necessary or conducive to the public interests.

House of Commons-Courts of Law-Jurisdiction of Courts in relation to Privileges asserted by a House of Parliament.

Held by the Court

1. The Court had jurisdiction to inquire, for the purposes of the action, into the existence and extent of the privilege or power alleged in the plea;

2. In such inquiry the resolution and declaration of the House of Commons did not conclude the Court;

3. The privileges or powers of the House did not include the power to authorise as against the plaintiff the publication of the libel to the general public as distinguished from members of the House;

By Patteson, J.—

4. Declarations by the House of its own privileges ought to be treated with all possible respect as authorities or evidences, although not conclusive.

FIRST ACTION.

November 7, 1836.-The declaration (a) stated that the plaintiff was

in the Home District, and did then find in the Guthrie's Grammar, a song book, the Keepsake said gaol several books, and among these books Annual for 1836, and a certain book with 18 plates, published by the plaintiff in the year of our Lord 1827, and purporting to be published by John Joseph Stockdale in the year of our Lord 1827, which last-mentioned book is the book mentioned in the declaration as the book mentioned to be a book of a most disgusting nature, in the said book published by the defendants in the declaration mentioned, purporting to be Reports of the Inspectors of Prisons of Great Britain."

"a bookseller and publisher of books and as such bookseller and publisher had published divers and very many scientific and learned books, and particularly in the year 1827, a certain physiological and anatomical book on the generative system, illustrated with anatomical plates. Yet the defendants, well knowing the premises, &c., and maliciously intending to injure the plaintiff in his said trade of a bookseller and publisher, and to cause it to be believed that he published indecent and obscene books, on the 1st day of May, 1836, maliciously did publish and cause to be published of and concerning the said plaintiff in his said trade and business, in a certain book, purporting to be Reports of the Inspectors of Prisons of Great Britain,' the false, scandalous, malicious, and defamatory libel following that is to say, 'We also found several books amongst them Guthrie's Grammar, a song book, the Keepsake Annual for 1836, and by (b) 18 plates, published by Stockdale, 1827' (meaning the said anatomical and physiological work and plates published by the said plaintiff). This last is a book of the most disgusting nature, and the plates are obscene and indecent in the extreme,' (c) to the injury of the plaintiff in his said trade, &c." November 23, 1836.-Pleas(d): 1st, Not" the word We,' being the first of the words Guilty. 2nd, "That

the

"after the making and passing of a certain Act of Parliament, &c. intituled, An Act for effecting greater uniformity of practice in the government of the several prisons in England and Wales and for appointing inspectors of prisons in Great Britain,' to wit, on the 1st of January, 1836, the Right Honourable John Russell, Esquire (commonly called the Right Honourable Lord John Russell), then being one of His Majesty's principal Secretaries of State, nominated and appointed William Crawford, Esquire, and the Reverend Whitworth Russell, to visit and inspect every gaol, &c. in a certain part of Great Britain called the Home District, &c. On the 1st of March, 1836, the said William Crawford and Whitworth Russell, under and by virtue of the said nomination and appointment, visited and inspected a certain gaol called Newgate, situate

(a) The declaration is in Appendix No. 2 of Report of Select Committee on Publication of Printed Papers, 1837, and in Papers of Solicitors of Treasury, No. 635.

(b) These blanks were in the declaration and

in the report cited.

This plea then went on to aver that— "the book so found and so mentioned to be of a most disgusting nature, &c. contained eighteen plates and divers, to wit, 500 pages of printed letters, words, and figures, and was, and is, of a most disgusting nature, and that the plates thereof, and each and every one of them, to wit, then and always thereafter were, and are, obscene and indecent in the extreme, &c.; and that the said last-mentioned book had been published by the plaintiff in his said trade, and that the said William Crawford and Whitworth Russell made their report to Lord John Russell, which said report contained the words complained of in the declaration."

The plea further averred that—

of the libel, signified and purported the said William Crawford and Whitworth Russell, and that the defendants printed and published 200 copies of the said report, containing the matters in the declaration complained of as they lawfully might, concluding with a verification."

December 16, 1836.-Replication taking issue on the first plea, and as to the second plea,

"That the said book with eighteen plates, in the said last-mentioned plea, and in the said declaration mentioned as being published by the said plaintiff in the year 1827, is not of a most disgusting nature, and the said plates in the said book are not, nor is either of them, in any manner obscene and indecent, as in aud by the said last-mentioned plea is averred;" concluding to the country.(a)

January 6, 1837.-Rejoinder, taking issue on the replication to the second plea WESTMINSTER.

Adjourned sittings after Hilary Term, 1837.

(c) Reports of Inspectors of Prisons, Home Before Lord DENMAN, C.J., and a Special District, 1836, p. 5.

(d) As first drawn, the pleas were not guilty, a plea justifying under the orders of the House of Commons, and a plea justifying on the ground of the character of Stockdale's publication. When leave to plead several matters was applied second plea, alleging that such matters might be given in evidence under the general issue.Evidence before Select Committee on Publication of Printed Papers, 1837, 60.

for at chambers, Littledale, J., struck out the

Jury.

February 7, 1837. The plaintiff in person addressed the jury at great length and called their attention to the exceedingly high character he had at all times enjoyed in society, and to the almost incalculable benefits he had heaped upon

(a) The replication is signed by John Curwood. See below, p. 734, note (a).

the public at large. He also alluded to the various instances wherein he had been persecuted by mankind in general, (a) and to the unparalleled courage, manliness, and fortitude with which he had suffered those inflictions, under the conviction that ultimately he should come before a jury who would manifest a disposition to do justice to his merits, and to the independent and pure principles by which at all times and upon all occasions he had been governed in his actions.(b)

EVIDENCE FOR THE PLAINTIFF.

It was proved by the son of the plaintiff that he was present at a purchase of a book containing the reports of the Inspectors of Prisons, in which there were the passages set out in the declaration. This witness stated that the book was purchased on the 16th July 1836, at Messrs. Hansard's office for the sale of Parliamentary Papers.

In his cross-examination he said: "My father has been carrying on business as a bookseller and publisher, but not as a publisher of medical works. I know from my father that he published a work, the title of which was, 'The Generative System.' There were copies of it in my father's shop;" and a copy of that publication being put into the witness's hands, he stated that it appeared to him to be similar to those he had seen in the shop.

The libel was read. It was exactly as set forth in the declaration.

DEFENCE.

in strict accordance with the orders of the House of Commons. It is, in fact, an action brought against a servant of the House of Commons.

Lord DENMAN, C.J.: I understand it was purchased.

show exactly how that was.
Attorney General: Yes, my Lord, I will
chased in Abingdon Street, where the
It was pur-
sale goes on under the authority of Par-
liament. I shall state the facts as they are.

Lord DENMAN, C.J.: I doubt whether there can be any privilege to sell libels.

Attorney General: I am going to state the facts, and your Lordship will either decide the law

Lord DENMAN, C.J.: If it had been merely written or printed for the use of Members it would be a different thing.

Attorney General: I am going to state the orders of the House, and it is thought by persons of the highest Parliamentary experience in this country that this authority is a clear defence. I was going to state that an Act passed in the 5th and 6th years of His present Majesty, (a) intituled

"An Act for effecting greater uniformity of practice in the government of the several prisons in England and Wales, and for appointing inspectors of prisons in Great Britain."

Gentlemen, by the 7th section of that Act it is enacted

"That it shall be lawful for one of His Majesty's principal Secretaries of State to nominate and appoint a sufficient number of fit and proper persons, not exceeding five, to visit, either singly or together, every gaol, bridewell, house of corThe Attorney General (Sir John Camp-rection, penitentiary, or other prison or place bell) (c): Now, having admitted the publication, and that it refers to Mr. Stockdale, unless I have a defence, the verdict will be for the plaintiff; but I will state the defence I propose to lay before you. Gentlemen, there are two. My Lord will observe there is a plea of not guilty, and there is a justification that the work deserves the character ascribed to it in the report. Under the plea of not guilty, Mr. Justice Littledale, on the anthority of some recently decided cases, stated that the first defence I have to offer was to be given in evidence; and he struck out the special plea, because he said, according to the rules of pleading, we were not entitled to it, there being the general issue. (d) My first defence is that Messrs. Hansard acted

(a) See Stockdale v. Onwhyn, 2 C. & P. 163; S.C. 2 St. Tr. N.S. 988; Poplett v. Stockdale, 2 C. & P. 198; Stockdale v. Chapman, 7 C. & P. 363; Rex v. Stockdale, 22 St. Tr. 237; Notes and Queries, 2nd series, 9, 447.

(b) Times, February 8, 1837.
(c) Afterwards Lord Chancellor.
(d) See above, p. 725, note (d).

kept or used for the confinement of prisoners in any part of the kingdom of Great Britain; and every person so appointed shall have authority ceiving any salary or emolument in any such to examine any person holding any office, or regaol, bridewell, house of correction, penitentiary, said; and to call for and inspect all books prison, or other place of confinement as aforeand papers relating thereto, and to inquire into all matters touching and concerning such gaol, bridewell, house of correction, penitentiary, prison, or other place of confinement; and every such person so appointed shall, on or before the 1st day of February in every year, make a separate and distinct report in writing of the state of every gaol, bridewell, house of correction, penitentiary, prison, or other place mit the same to one of His Majesty's principal of confinement visited by him; and shall transSecretaries of State, and a copy of every such report shall be laid before both Houses of Parof February, if they shall then be assembled, or, liament within fourteen days after such 1st day if Parliament shall not then be assembled, within fourteen days after the meeting thereof after such 1st day of February."

(a) 5 & 6 Will. 4. c. 38.

"Resolved, That the Parliamentary papers and reports, and also the Votes and Appendix to the Votes, should be sold to the public at the price of one halfpenny per sheet.

Gentlemen, under this Act inspectors | in the session of 1836 these resolutions were appointed, Mr. Crawford and Mr. passed, Friday, March 18th, 1836:Russell for the metropolitan district; they inspected, amongst other gaols, the gaol of Newgate, and they made a report, which was laid before the Parliament(a) under the statute I have read to you; that report was laid before the House of Commons and ordered to be printed the 22nd of March 1836, (b) and this is the report which Mr. Stockdale alleges to be a libel. Now, my Lord has intimated an opinion that, if this had been merely printed for the use of the members of the House, it would be no libel, because it is a Parliamentary proceeding; and the Court would take judicial notice

"That all charts, plans, or drawings which these papers may contain be charged at the rate of 3d. for each half sheet, or 6d. for each whole sheet, of foolscap size, and 1s. per sheet of larger size.

"That papers of former Sessions now remaining in store be sold at the same rate as those of the current Session.

House, be appointed to conduct the sale.
"That Messrs. Hansard, the printers of the

"That in order to render the Parliamentary papers accessible to the public through the Lord DENMAN, C.J.: It is a statutable means of other booksellers, it is expedient that proceeding after that.

Attorney General: It is even a statutable proceeding. His Lordship will recollect the case of Lake v. King,(c) which occurred in the time of Charles 2., and which was decided by Lord Hale and the rest of the judges. There the Court held that the printing of a petition, though it reflected upon the plaintiff, was no libel, and no action could be maintained. Now, what I have to show is, that though this was bought by the plaintiff's son at this house in Abingdon Street, it is protected, and has the same privilege. Gentlemen, there was a resolution of the House of Commons on the 13th of August 1835, (d)

in these words :-
:-

"Resolved, That the Parliamentary Papers and Reports printed for the use of the House should be rendered accessible to the public by purchase, at the lowest price they can be furnished, and that a sufficient number of extra copies shall be printed for that purpose."

That was in the session of 1835. Then

(a) "Mr. Fox Maule presented, pursuant to the directions of an Act of Parliament, Report of the Inspectors appointed to visit the different Prisons of Great Britain. Ordered, That the said paper be referred to the Select Committee on Prisons."-Com. Journ. 91, 156 (19th March 1836).

(b) "The Order made upon the 18th day of this instant March, for referring to the Select Committee on Prisons, the reports of the Inspectors of Prisons, was read and discharged. Ordered, That the said papers do lie upon the table, and be printed."-Com. Journ. 91, 194 (22nd March 1836).

(c) 1 Wms. Saunders, 131; S.C. 1 Lev. 240. "In that case the only publication of the petition containing the libel was by delivering copies of it to the members of the Committee of the House of Commons."-(Note by the reporters, 7 C. & P. p. 734.)

(d) Com. Journ. 90, 544b, the fourteenth resolution of the Select Committee on Printed Papers.

a discount of 12 per cent. should be allowed to the trade, who shall become purchasers.

"That the Committee recommend that

Messrs. Hansard should charge in their accounts the actual expense incurred by them in carrying on the sale as proposed in these resolutions."

Gentlemen, these resolutions being passed, Messrs. Hansard have acted in strict conformity to the orders of the House; they have sold the reports, and have sold terest whatever in the sale of them; they them without any profit; they had no inare the mere instruments of the House; of the House; and this is an action against in fact, they are the servants and agents the House of Commons. Now, upon these facts, under the plea of Not Guilty, we are entitled to a verdict; if we are entitled to it at all, that is the proper plea. This is repelling the charge of malice, and Not Guilty is the proper plea under which it is to be given in evidence. I submit, when we show that this publication took place in conformity to the express orders of the House of Commons, we are privileged, and it cannot be considered a libel.

Gentlemen, I will remind my Lord of the case of The King v. Wright, (a) which went a great deal further. In that case Lord Kenyon and the other judges of the Court of King's Bench, who assisted him, declared that not only the bookseller or printer who printed or published a work in conformity to the order of the House of Commons were exempted from any action or prosecution for libel, but that that could not be considered a libel which the House of Commons had ordered to be published; the House of Commons, nor acted under and although Wright was not the printer of their orders, although he republished a report that the House of Commons had printed by its own printers, the Court of King's Bench declared that this publica

(a) 8 T.R. 293, where the earlier authorities are collected and referred to.