Stockdale v. Hansard
Encyclopedia
Stockdale v Hansard 9 Ad & El 1 was a case in which the Parliament of the United Kingdom
unsuccessfully challenged the common law
of parliamentary privilege
, leading to legislative
reform.
The Prisons Act 1835 had introduced the first national prison system in the United Kingdom, along with a regime of prison inspections. Whitworth Russell was one of the first inspectors and had been the reforming champion of the austere regime at the Millbank penitentiary. In Newgate prison
, Russell, and his fellow inspector William Crawford, had discovered a well-thumbed edition of John Roberton
's On Diseases of the Generative System (1811), edited by Thomas Little, a pseudonym of John Joseph Stockdale
. Roberton was a radical
and something of an outsider to the medical profession while Stockdale was a notorious pornographer
and the book had attracted some distaste on its publication for its explicit anatomical plates.
In 1836, official parliamentary reporter Hansard
, by order of the House of Commons
, printed and published a report stating that an indecent
book published by a Mr. Stockdale was circulating in Newgate. Publication of such parliamentary papers for circulation among Members of Parliament (MPs) alone was, and still is, protected by absolute privilege under common law
. However, a further development from 1835 had resulted from MP Joseph Hume
's campaign to make better use of the mass of parliamentary papers and to improve freedom of information
by publishing parliamentary papers to the public.
The aldermen
of the City of London
who were responsible for Newgate were incensed. They saw Roberton's book as a scientific work but the inspectors affirmed their original description observing "We also applied to several medical booksellers, who all gave it the same character. They described it as 'one of Stockdale's obscene books.'"
Stockdale sued for £500 damages
for libel, admitting that he had published the book but denying its obscenity. Stockdale sued as a pauper
and Mr Justice Park
assigned him counsel
. Attorney-General
Sir John Campbell
appeared for Hansard. The first trial
took place in 1837 before Lord Denman
and a jury
. Denman dismissed Campbell's defence that the publication was privileged and the jury had only to consider the defence that the published statement had been true and the book indeed indecent. When they first returned, the jury foreman said that they found the book indecent and obscene but did not all agree that it was disgusting and wished to award Stockdale a farthing in damages. After a rebuke from Lord Denman on their faulty logic, the jury briefly conferred and found for Hansard.
Stockdale now found a copy of the City aldermen's response to the original report and sued again but Hansard was ordered by the House to plead that he had acted under order of the Commons and was protected by parliamentary privilege
.
The court was led by Lord Denman, who had had some support on the case from barrister
Charles Rann Kennedy
. The court held that only the Crown
in both Houses of Parliament could make or unmake laws and no resolution of one house alone was beyond the control of law. Further, where it was necessary to establish the rights of those outside Parliament, the courts would decide the nature of privilege. The court found that the House held no privilege to order publication of defamatory material outside parliament.
In consequence, parliament passed the Parliamentary Papers Act 1840
to establish privilege for publications under the House's authority.
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
unsuccessfully challenged the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
, leading to legislative
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
reform.
Facts
Newgate Prison
Newgate Prison was a prison in London, at the corner of Newgate Street and Old Bailey just inside the City of London. It was originally located at the site of a gate in the Roman London Wall. The gate/prison was rebuilt in the 12th century, and demolished in 1777...
, Russell, and his fellow inspector William Crawford, had discovered a well-thumbed edition of John Roberton
John Roberton (1776)
John Roberton was a Scottish physician and social reformer. A radical and fringe figure in the medical profession, he is best remembered for advocating the founding of a medical police to promote health and social welfare and for authoring a book that became the centre of a notorious legal...
's On Diseases of the Generative System (1811), edited by Thomas Little, a pseudonym of John Joseph Stockdale
John Joseph Stockdale
John Joseph Stockdale was an English publisher and editor with something of a reputation as a pornographer...
. Roberton was a radical
Radicalism (historical)
The term Radical was used during the late 18th century for proponents of the Radical Movement. It later became a general pejorative term for those favoring or seeking political reforms which include dramatic changes to the social order...
and something of an outsider to the medical profession while Stockdale was a notorious pornographer
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
and the book had attracted some distaste on its publication for its explicit anatomical plates.
In 1836, official parliamentary reporter Hansard
Hansard
Hansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
, by order of the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
, printed and published a report stating that an indecent
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
book published by a Mr. Stockdale was circulating in Newgate. Publication of such parliamentary papers for circulation among Members of Parliament (MPs) alone was, and still is, protected by absolute privilege under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. However, a further development from 1835 had resulted from MP Joseph Hume
Joseph Hume
Joseph Hume FRS was a Scottish doctor and Radical MP, born in Montrose, Angus.-Medical career:He studied medicine at the University of Edinburgh and moved to India in 1797...
's campaign to make better use of the mass of parliamentary papers and to improve freedom of information
Freedom of information
Freedom of information refers to the protection of the right to freedom of expression with regards to the Internet and information technology . Freedom of information may also concern censorship in an information technology context, i.e...
by publishing parliamentary papers to the public.
The aldermen
Alderman
An alderman is a member of a municipal assembly or council in many jurisdictions founded upon English law. The term may be titular, denoting a high-ranking member of a borough or county council, a council member chosen by the elected members themselves rather than by popular vote, or a council...
of the City of London
City of London
The City of London is a small area within Greater London, England. It is the historic core of London around which the modern conurbation grew and has held city status since time immemorial. The City’s boundaries have remained almost unchanged since the Middle Ages, and it is now only a tiny part of...
who were responsible for Newgate were incensed. They saw Roberton's book as a scientific work but the inspectors affirmed their original description observing "We also applied to several medical booksellers, who all gave it the same character. They described it as 'one of Stockdale's obscene books.'"
Stockdale sued for £500 damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
for libel, admitting that he had published the book but denying its obscenity. Stockdale sued as a pauper
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
and Mr Justice Park
James Alan Park
Sir James Alan Park KC was a British judge. He was the son of James Park, a surgeon from Edinburgh, and was brought up in Edinburgh until his fathers practice moved to Surrey. He was educated first at Northampton Grammar School and then at Lincoln's Inn...
assigned him counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
. Attorney-General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
Sir John Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
appeared for Hansard. The first trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
took place in 1837 before Lord Denman
Thomas Denman, 1st Baron Denman
Thomas Denman, 1st Baron Denman PC KC was a British lawyer, judge and politician. He served as Lord Chief Justice between 1832 and 1850.-Background and education:Denman was born in London, the son of Dr Thomas Denman...
and a jury
Jury (England and Wales)
In the legal jurisdiction of England and Wales, there is a long tradition of jury trial that has evolved over centuries.-History:The English jury has its roots in two institutions that date from before the Norman conquest in 1066...
. Denman dismissed Campbell's defence that the publication was privileged and the jury had only to consider the defence that the published statement had been true and the book indeed indecent. When they first returned, the jury foreman said that they found the book indecent and obscene but did not all agree that it was disgusting and wished to award Stockdale a farthing in damages. After a rebuke from Lord Denman on their faulty logic, the jury briefly conferred and found for Hansard.
Stockdale now found a copy of the City aldermen's response to the original report and sued again but Hansard was ordered by the House to plead that he had acted under order of the Commons and was protected by parliamentary privilege
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
.
Judgment
The Commons claimed that:- The Commons was a court superior to any court of law;
- Each House (Commons and LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
) was the sole judge of its own privileges; - A resolution of the House declaratory of its own privileges could not be questioned in any court of law.
The court was led by Lord Denman, who had had some support on the case from barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
Charles Rann Kennedy
Charles Rann Kennedy
Charles Rann Kennedy was an English lawyer and classicist, best remembered for his involvement in the Swinfen will case and the issues of contingency fee agreements and legal ethics that it involved.-Life:...
. The court held that only the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
in both Houses of Parliament could make or unmake laws and no resolution of one house alone was beyond the control of law. Further, where it was necessary to establish the rights of those outside Parliament, the courts would decide the nature of privilege. The court found that the House held no privilege to order publication of defamatory material outside parliament.
In consequence, parliament passed the Parliamentary Papers Act 1840
Parliamentary Papers Act 1840
The Parliamentary Papers Act 1840 is an Act of the Parliament of the United Kingdom. The Act was passed in response to the case of Stockdale v...
to establish privilege for publications under the House's authority.