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General Ashburnham

{LORDS}

Discipline of the Army.

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spatches-having met with that approba- because it is their duty so to do for the tion and approval, his own conscience was guidance of public opinion. But what I perfectly clear as to his having done any- did call in question was the manner in thing which deserved in the least degree which the criticisms against General Ashthe attacks which had been made upon burnham had been made by an inferior him; and he felt perfectly satisfied that officer, and directed against the profesupon every one of those occasions upon sional character of an officer under whom which his conduct had been impugned he he had served-and the time at which they could not, consistently with his duty, have had been made. Your Lordships will taken any better course than that which recollect that those criticisms were made, he had adopted. not during the time when Parliament was LORD PANMURE: My Lords, as the sitting, and when an answer could have noble Earl has called my attention to this been given to them in your Lordships' subject, I have no hesitation in saying House, or in the other House of Parthat, in cases where junior officers, either liament, and not during the three weeks anonymously or otherwise, make attacks which afterwards elapsed when General on the conduct of their superior officers, Ashburnham was in this country and I shall be most happy to give to the might have defended himself, but after he Commander in Chief all the assistance in had left the country as the commander of my power in maintaining the discipline of the expedition intrusted to him by the the army by bringing those junior officers Government. I think, my Lords, I did to account. But there is some little differ-right in making the observations which I ence between the case of the noble Earl addressed to your Lordships yesterday on and that which was the subject of discus- this subject; but I repeat that I by no sion in your Lordships' House yesterday. means denied, or intended to deny, the The officer who attacked the noble Earl right of the public press at large to review has avowed his name as the author of a any appointment that might be made by book which he had published in the first the Executive Government. instance anonymously. When the noble Earl brought his case before your Lordships I advised him, as his reputation and his position were uninjured, to treat with the contempt they deserved the insinuations made against his military character in that book; and I told him at the same time, that if he wished a remedy in respect of the charges which had been brought against him, the law of the land was open to him as a means of setting his character right with the public. Moreover, the officer who wrote that book was not under any employ by the Commander in Chief. I do not, however, wish now to renew the discussion on the case of the noble Earl; but, in reference to the debate which took place last night, I am desirous of setting myself right with your Lordships with regard to a part of the observations I made on that occasion, in which, I think, I have been misrepresented. I am charged with denying the right of the public press generally to criticise appointments made by the Executive Government-made, that is to say, not by the present Executive Government only, but by any Executive Government. Now, I never had the folly to make any such assertion; on the contrary, I hold it to be the vocation of the public press to criticise all appointments, made either by this or any other Government,

THE EARL OF CARDIGAN said, he had made no reference whatever to the opinions of the press in the observations he had addressed to the House. What he said had respect to the conduct of junior officers calumniating their superiors, and he contended that unless officers so conducting themselves were brought to account, there would be no way of testing the truth of the accusations they made against others, or of maintaining intact the discipline of the army. In his own case, he must remind the noble Lord that he had had no redress, though he had sought it by the means suggested.

THE EARL OF HARDWICKE said, this was the case of an officer abused behind his back by an anonymous writer; and the responsibility of the Government for the appointment required them to defend him. He thought, therefore, the noble Lord had done no more than his duty in vindicating the appointment of General Ashburnham to this command. He knew nothing of the attack itself; but he would say that when an officer attacked the character of another in the public prints, it would be the manly and honourable course to sign his name. To make a public attack anonymously was disgraceful. He was not astonished that his noble Friend (the Earl of Cardigan) should call attention to this matter, con

as vehicles for attacking their superior officers behind their backs. He thought there ought to be some power on the part of the military authorities to punish such conduct. He must say that, while military officers were generally the very first to complain of the comments of the press which censured or criticised military appointments and actions, whether such comments were fair, or whether they exceeded what might be considered the limits of fairness, those officers appeared, in every instance, when they thought they had a grievance, to be the first to avail themselves of the press for the dissemination of their own views. Now, he did not think they were entitled to take both these courses, though they might adopt either. They ought to object to the interference of the press and avoid it, or they ought to appeal to the press and submit to its criticism. He thought, however, that when an officer whose identity might easily be ascertained came forward, as "M. L." had done, to make charges affecting the credit of another officer of high position, some military tribunal ought to be empowered to call upon the accuser to establish bis assertion.

sidering how he had been aspersed himself. | conduct of officers who used the newspapers The promise of Lord Panmure that he would assist the Commander in Chief in all such cases to take notice by the legal process of court-martial of these attacks, amounted to nothing more than was universally done in the service. That a junior officer was to malign his senior, the two being in the full pay of the Crown, was a thing impossible to admit, unless they were to overthrow military discipline entirely. But when the question arose with regard to an officer on half-pay, or on retirement, who wrote a book, that materially altered the case. The liberty to do so no doubt existed; the propriety of doing so was another question. Governments. in olden times used not to be very fond of officers who were fond of writing; and if that course were pursued on all occasions, and if the Government showed a disinclination to have anything to do with officers who were in the habit of writing, they would do a great service. It was not necessary, in a military point of view, that an officer should be a great writer; and if gentlemen retired or on half-pay were to sit down and write abusive books or libels against officers under whom they had served, such a practice must have a tendency to injure military discipline, and the facilities for carrying on the public service. The mili tary law had ceased to have power in such cases, and it must be left to the civil authority of the country to vindicate the LORD CAMPBELL: My Lords, I shall character of any officer so attacked. The detain you for a very few minutes in moving case then became one of considerable diffi- for the reappointment of the Select Comculty, as the liberty of the subject might be mittee, the appointment of which I obconsidered to be connected with it. He tained during the last Session, to inquire thought, himself, that unless both the into a very important and difficult subject officers concerned in the transaction were namely, whether the privilege now enin actual service on full pay, the Crownjoyed by reports of the proceedings of should not interfere to vindicate the officer who had been calumniated.

THE EARL OF CARDIGAN said, that officers upon half-pay were liable to be recalled to active service at any time, and he thought therefore that the military law as affecting these cases ought to apply to them as well as to officers upon full pay.

THE MARQUESS OF CLANRICARDE said, that he had been somewhat misunderstood, in having been supposed to blame the conduct of the press with reference to this subject. He had not intended to impute any such blame, nor had he any objection to the discussion raised by the press other than that which arose from the particular time at which such discussion had taken place. What he objected to was the

PRIVILEGE OF REPORTS.-
SELECT COMMITTEE MOVED.

ADMINISTRATION OF OATHS.

SELECT COMMITTEE MOVED.

courts of justice may be safely extended to the reports of the proceedings of the two Houses of Parliament and of other public assemblies. At present, according to the established law, the proceedings of courts of justice may be published with impunity if they are fair and bond fide. The greatest benefit has arisen to the public from that privelege; but it extends no further-not even to the proceedings of the two Houses of Paliament. It has lately been decided-and I believe the decision is allowed to be a sound one-in the case of Davison v. Duncan, that if, except in the case of proceedings of courts of justice, the editor of a journal publishes accounts of any other proceedings at all criminatory of any individuals, the pro

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Privilege of Reports.

{LORDS} Administration of Oaths.

76

prietors of the journal in which the report | posed that complete immunity should be is given are liable to an action and it given to fair reports of what took place in was stated by my distinguished predecessor, either House of Parliament. My proposiLord Denman, that there was no immunity tion was supported by the late Lord Denfor a fair and faithful and accurate account man; but, unfortunately, it was not sucof the proceedings of this or of the other cessful. I certainly cannot conceive any House of Parliament. Now, there does well-grounded objections to that proposal. seem to be a grievance here; because All the arguments by which you support although actions are not frequently brought the privilege of reports of law proceedings in consequence of the reports of pro- will equally apply to the proceedings of ceedings of either House of Parliament, the two Houses of Parliament. What is there is no doubt they may be brought; the foundation of that immunity of law and, in fact, considerable anxiety prevails reports? The public good. Well, I suplest actions should be brought under such pose your Lordships and all the Members circumstances; and if actions should be of the other House are of opinion it is for brought, there can be no defence on the the public good that the proceedings of part of the most distinguished and trust- both Houses of Parliament should be made worthy journals. It seems to me, my known to the country? But I would not Lords, that this is a state of things which stop there. There are other assemblages ought not to continue if it can be prevent- with whose proceedings it is desirable that ed. A remedy has been proposed to which the public should be acquainted. This I certainly can by no means accede. It day, I believe Convocation assembles, and has been proposed that all distinctions be- I suppose that to-morrow we shall have tween verbal and written slander shall be an account of the speeches of our most abolished, and that it shall be a good de- reverend and right reverend Friends. fence to an action for a written libel if the Notwithstanding the grave character of defendant can show that the statement was that assembly, statements are sometimes made by any individual, at the same time made there which might form the grounds pointing out the individual. This proposi- of action: and it would be extremely hard tion is supposed to be founded upon what if proceedings were taken against The is called "Lord Northampton's case;" but, Times or any other journal for accounts as my noble and learned Friend on the of what had been said by the Archbishop cross bench well knows, it is founded upon of Canterbury or by the Bishop of St. an utter misconception and misrepresenta- David's. It may be urged-but I only tion of that case. The dictum of the throw out the suggestion, and give no Judges who sat in the Star Chamber went, opinion on the matter-that the immunity if properly understood, no further than should be extended to all meetings held this-that when what was said by another under the authority of an Act of Parliawas repeated upon a proper occasion, the ment, and to which the public may rightauthor of the statement being at the same fully claim admission. Some line must time pointed out, it might be defended. be drawn, for it would be monstrous to But to allow that what has been whispered contend that anything that can be called a in a corner may be published in every jour- public assemblage should be privileged. nal in the empire with impunity, would be If that were the case, no doubt Mr. Ernest wholly inconsistent with the protection due Jones's meetings and the Sunday assemto the characters of individuals. If all blages in Hyde Park would be much frethat is said at a public meeting, or in any quented by those who wished to calumniate assembly that may be called a public meet- their neighbours. Some line must be ing, is to be published without any remedy drawn with regard to the public meetings being provided for those whose characters to which the privilege is extended; but, if may be attacked, the most mischievous this cannot be done, it is matter for conconsequences will ensue. Public meetings sideration whether it might not be enacted may be got up for purposes of calumny, that if a fair account of what has taken place and the person who utters the calumny at a public meeting is given, and no real may be a man of straw, who will fly the damage is inflicted upon the character country as soon as he has uttered his slan- of any one by such publication, the jury derous statement. I think, however, that might be entitled, in case of an action a remedy may be devised which will, at all being brought, to find a verdict for the deevents, mitigate the evil that exists at fendant. Until very lately if a jury found present. Some years ago I myself pro- a verdict for a farthing damages full costs

followed; but the law in that respect is altered. I ask your Lordships, however, to consider the case of an action for libel where the plaintiff has suffered no damage, but where the proprietors of the journal against which proceedings are taken are obliged to pay a very heavy sum as costs independently of the anxiety and disagreeable consequences which the mere fact of having an action brought against them must occasion. I merely offer these suggestions in order to induce your Lordships to institute an inquiry on the subject, and I trust you will consent to the renewal of the Committee which was appointed during the last Session.

instances where your Lordships have dele-
gated the power of administering oaths to
witness to Commissions-for instance, it
appeared that it had been systematically
done so in the case of the tryers of peti-
tions, and in the case of Lord Lovat, a
commission was sent down to Scotland to
examine witnesses on oath, and that Com-
mission did administer the oath and ex-
amine witness so far off as Inverness. If
that is within your Lordships' power as to
Commissions, why is it not within your
power as regarded Select Committees from
your own body? I will not, however, give
any decided opinion on the question; es-
pecially since I understand that my noble
and learned Friend on the woolsack and
my noble and learned Friend on the cross
benches (Lord Wensleydale) entertain doubt
as to the power as regarded Select Com-
mittees by means merely of a standing
order. Until these doubts are removed,
I shall not attempt to remove the difficulty
by that means. Then as regarded legis-
lation, it might be said that the House of
Commons would object to pass a Bill to
enable their Lordships to swear witnesses
before a Select Committee unless similar
power was given to themselves.
true that the House of Commons itself
had no power of administering oaths; but
that, in my opinion is an anomaly which
ought to be removed, and similar powers
ought to be given to the House of Com-
mons in every respect, However, for the
present, I shall content myself with mov-
ing, first-

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I wish also to take the opportunity of calling your Lordships' attention to the manner in which oaths are administered to witnesses who are examined before Committees of this House. When the House is not sitting witnesses cannot be sworn, and the consequence is that persons are frequently brought up from the country and are kept in town for some days, or are sent back to their homes and again brought to London to be sworn, either proceeding entailing very considerable expense. The shift is sometimes resorted to of allowing witnesses to give evidence without being sworn, and of afterwards swearing them at the bar of the House that evidence they have previously given is true. The most serious inconveniences arise from the practice; for sometimes, while their Lordships are engaged in the exercise of their judicial functions, there is a tremendous rush to the bar; the learned counsel who are addressing their Lordships are interrupted, the Lord Chancellor is alarmed, and there is as great a confusion as if a second Lord George Gordon's mob had broken into the House. Yet when we come to inquire what is the matter, we find it is only the witnesses on some railway Bill come to the bar to be sworn. The sole question which appears to me to arise is, whether we can remedy the evil by means of a standing order, or whether we must have recourse to legislation. When I first considered the matter THE LORD CHANCELLOR thought I was of opinion that your Lordships had that all their Lordships would concur power, proprio vigore, to authorize wit- in the propriety of the course pronesses to be sworn before Select Com- posed to be pursued by the noble and mittees. Since I first brought the matter learned Lord. Both the subjects to which before your Lordships, the matter has been inquired into by my learned Friend Mr. Macqueen, and the opinion I formerly entertained has been fortified by the result.

It seems there have been repeated

That a Select Committee be appointed to consider whether the Privilege now enjoyed by Reports of the Proceedings of Courts of Justice of the Proceedings of the Two Houses of Parliamay be safely and properly extended to Reports ment, and of any and what other Assemblies or Public Meetings, under any and what Conditions or Restrictions."

And secondly

"That a Select Committee be appointed to consider and report on the Expediency of altering the present Mode of administering Oaths to Witnesses to be examined by Committees of the

House."

attention had been called were of the greatest importance. With respect to the last alluded to he confessed, looking at the matter with the eye merely of a lawyer, he doubted whether it would be safe

to attempt to effect the important change | object was to get at the truth, and if the suggested simply by a standing order. It administering an oath afforded greater might be possible, investigating the sub- security of attaining that object. In that ject with the eye of an antiquarian, to Motion of his noble and learned Friend, discover precedents, leading to a conclu- therefore, he entirely concurred, although sion that the right of delegating to Com- he would caution him and the rest of their mittees of the House to swear witnesses Lordships not to be led away by old antidid exist; but it must be felt, if such a quarian precedents of what had been done course were taken and a witness were af- by the Tryers of Petitions in former days, terwards charged with perjury for evidence which might afford very scanty security given before a Committee that it would be against what might be the decisions of to the last degree doubtful what might be Westminster Hall in modern times. With the decision of the Judges in Westminster regard to his other Motion, he entirely Hall on the validity of the oath so ad- agreed in the expediency of removing what ministered; and therefore in matters which he admitted to be an acknowledged and might involve criminal consequences of crying evil. He feared that it would be great importance, he was satisfied that it very difficult to arrive at a definition of was best not to leave the matter to chance, what should be regarded as a public meetand, unless his noble and learned Friend ing, the publication of whose proceedings could satisfy the Committee for which he ought to be allowed; but he believed that now moved, that the power for which the suggestion of his noble and learned he contended did exist beyond any reason- Friend that juries should have the power, able doubt, he was sure that legislation in cases where they thought that no dawas the wisest course to pursue. The mage had been inflicted, of finding a verobject of administering oaths was to give dict for the defendant, which would give the highest sauction to truth, and it was the defendant his costs, would afford a always said that an oath should be admin-simple and practical remedy for the existing istered with the greatest solemnity and by evil. He reserved to himself, however, the highest functionaries; but any of their the right to examine the subject more in Lordships who had witnessed the admin- detail before committing himself to the istration of oaths in that House must be approval of any particular measure. aware that that object was not promoted by the present practice. His noble and learned Friend had certainly not exaggerated the indecorum attendant on the swearing of witnesses at the bar of the House. Sometimes, in consequence of the rushing in of witnesses to be sworn at the bar, there was such a disturbance that the proceedings of a judicial nature which were going on had to be suspended, or else they were continued in the midst of noise made by a crowd at the bar taking oaths with very little of solemnity. There was the least possible solemnity in the mode of administering oaths, and that the evil. ought to be remedied he had no doubt. He felt convinced that a power given to Select Committees of their Lordships' House to swear witnesses would work well, and the oaths would then be administered with greater solemnity. As at present advised, he saw no difficulty in the suggestion that the Commons would not pass a Bill to enable witnesses to be sworn before their Lordships' Committees without claiming a similar privilege for themselves. He had not considered that part of the question, but he saw no reason why they should not enjoy such a privilege if the

Motion agreed to; Committees severally nominated.

House adjourned at a quarter past Six o'clock, to Monday next, Eleven o'clock.

HOUSE OF

COMMONS,

Friday, May 8, 1857.

MINUTES.] PUBLIC BILLS.-1° Transportation and Penal Servitude; Registration of Long Leases (Scotland); Industrial Schools; Judgments Execution, &c.

THE LICENSING SYSTEM-QUESTION. MR. KER SEYMER inquired of the Secretary of State for the Home Department whether the Government intended to propose any alteration in the present mode of Licensing Public-houses and Beershops.

SIR GEORGE GREY replied, that it was not the intention of the Government during the present Session to propose any Bill upon the subject; at the same time he thought it right to say that the law relating to the licensing of public-houses and beer-shops was in a very unsatisfactory state. The hon. Member who had asked

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