principle. Did any positive inconvenience | effectual in practice. Some of its most arise from the exercise of this power? important regulations were to be reThe attorney-general was invested with nounced. It had, however, been truly this discretion-a greater discretion, he stated by his noble and learned friend, admitted, than belonged to any other in- that these laws had been fully revised and dividual; but it was exercised under a re-considered, at the time of our glorious responsibility to both Houses of Parlia- Revolution. They had then been apment. If any strong case of abuse in the proved by some of the wisest and most administration of this power could be excellent men that ever sat in parliament. brought forward, he, for one, should be Among them was lord Somers, who, takwilling to consider the propriety of with- ing for his guide the opinions of sir Matdrawing it; but he could see no reason thew Hale, went still farther, and confor going into such a discussion, when, demned proceedings by information. He for the last thirty years, through the thought proceedings by indictment a whole duration of his political life, from safer and more constitutional course. The the time at least when his noble and learn- noble earl had rebuked his noble friend, ed friend on the woolsack was appointed and traduced the constitution; but he to the office of attorney-general down to had not shown that blasphemy and sedithe present, the only blame or public tion might not be punished by the law as complaint had been, that the prosecutions it now existed. It had been urged, that were not more numerous. With this ex- the offence of the libel had frequently perience then, that there was no ground been repeated before trial, but every one of accusation or suspicion that this power of these additional acts of publication had been improperly directed against the might be already prosecuted. Such acts subject, he could not but feel adverse to were, moreover, always referred to in the introduction of any provision respect- aggravation of punishment. Another ing it into the measure under considera- difference between the noble earl and the tion. There was no charge of abuse, but noble and learned lord on the woolthe error, if there had been an error, was sack seemed to arise from a fact mentionentirely on the contrary side. He could ed by the latter, and which was that not assent, therefore, at this moment, to this measure had been long in his any proposition for altering the law in that contemplation. The noble earl on the respect, and trusted that he had shown other hand had treated it as a parcel of sufficient cause for the measure imme- the present budget-as called forth by an diately before them. immediate necessity, and not as a subject of calm dispassionate judgment. If the House, therefore, could have the benefit of another speech from the noble and learned lord, he had no doubt that the statement of the noble earl would be re Lord Holland declared that he felt some very decided objections to this proceeding. He did not consider himself competent, any more than the noble earl, to look at it in a technical point of view, but should endeavour to state the gene-pelled. Could it be gravely maintained ral nature of his reasons for opposing it. The noble earl had argued this question in a way not very respectful to his noble and learned friend. A great part of his speech was filled with reflexions on that ancient law by which the subjects of this country had hitherto been governed. The noble and learned lord on the woolsack had not uttered a single word on the necessity or intended operation of this measure. He had, therefore, as it appeared to him, received a severe rebuke from the noble earl who had last addressed the House. The wisdom of our ancestors, about which they had often heard so much rant, was at length represented as inadequate. Our boasted constitution was now, at least in some of its parts, described as absurd in theory, and in that we had hitherto lived under a state of law that was not adequate to the punishment of vice? They had been told that the attorney-general was a responsible officer; so he apprehended were all persons in public situations. The noble earl had said, that if any system of abuse could be shown to exist in the exercise of that officer's discretion, he would willingly go into a consideration of his powers, but that no such abuse had even been alleged. Upon this point, however, he must beg to refer them to a bill which he had wished to introduce some few years ago, and the object of which would have been to take away all exofficio informations. It was not satisfactory to him to be reminded, that the attorney-general was liable to an impeach+ [690 ment. He had stated upon the occasion it was only by mutual consent and arbefore alluded to, what he could have rangement. Now, he should have liked proved, that there had been an increase to have heard from the noble and learnof twenty to one criminal informations in ed lord, in what cases these delays ocproportion to the other modes of pro- curred most frequently. He had lookceeding. He could also have established into the bill in vain for the opinion ed something further, namely; that out of twenty filed, only one or two had been prosecuted. The House had frequently heard of the dangers to be apprehended in touching the sacred ark of the constitution. It was a common argument, that it was better to resist inquiry than to innovate upon any ancient law. Here, however, it was proposed to repeal a branch of the law favourable to the subject, and which appeared to him to have been enacted in the same spirit as many other of our free institutions, and which, in his conscience, he believed had often saved this country from being deluged with blood. It appeared to him to involve the same principles as the law of treason, and to have been passed on account of that inequality which was supposed would always exist where the subject was prosecuted by the Crown.-The noble and learned lord had confined his observations to a technical view of this question, and he must confess he had heard with astonishment, that, framed as the measure was, it had long been under his consideration. The very title appeared to him to be loose and inapplicable. The noble and learned lord's legal knowledge had not often been equalled, and certainly, never surpassed; yet he had utterly failed in making the House understand what the extent and nature of the delay was for which this proceeding was to afford a remedy. How were misdemeanors of this kind usually prosecuted? He believed in the court of King's-Bench, by information or by indictment at ses sions of Oyer and Terminer. There were two species of information; the one filed by the attorney-general upon his own mere authority; and the other granted by the court of King's-Bench, upon cause shown. By which of these modes of proceeding was the greatest delay in curred? Upon criminal information filed, there was a right of imparlance granted to the ensuing term. This was granted as an indulgence upon application, and was matter of usage on the first process. This was not the case, he apprehended, upon an indictment; for although the party might there traverse, (VOL. XLI.) of the noble and learned lord on that point; and, indeed, he must say, notwithstanding the great legal knowledge of the noble and learned lord, that a more clumsy, a more disjointed, or a more unintelligible bill, never was drawn up. What would the late earl Stanhope have said of it? Nothing, certainly, would have given him (lord Holland) greater delight than to have heard the eloquence of that noble earl on such a bill as this. Assuming a falsehood for its foundation, it went on to assert that which was not the case, even supposing the first assumption true. After having had the advantage of being assisted in framing it by all the learned gentlemen in the employment of the Crown, the noble and learned lord had said on the second reading, that the preamble must be altered. If the noble and learned lord, with all the legal assistance of which he had had the benefit, had been unable to make the bill intelligible, how were its provisions to be understood by those whom it was to affect? This reminded him of an anecdote which he had read of a great man, who had been a member of that House. He alluded to the earl of Shaftesbury, the author of the "Characteristics," and who one of the purest and ablest writers that this country ever produced. He seldom mixed in the affairs of the world; but when the bill for allowing counsel to persons accused of high-treason was introduced, he came forward in the House of Commons (for he was then lord Ashley), and for the first time in his life attempted to address the House in support of the measure. Eloquent however, as his writings were he was so overpowered by the emotions which the numerous assembly around him excited that he lost the train of his argument, and was unable to proceed." Sir," said he, “if I who rise only to give my opinion on the bill now depending, am so confounded that I am unable to express the least of what I proposed to say, what must the condition of that man be, who, without any assistance, is pleading for his life, and under apprehensions of being deprived of it?" The noble and learned lord, in (2 Y) was their lordships' went on to increase that distrust by passing measures such as the present, they would, by shaking their confidence in parliament (which he thought the greatest safety of the constitution), inevitably increase the evil He could not hope that his opposition would prevent the bill from passing, even in its present state; but if it were so altered as to legislate on both sides, by preventing the delays which occurred in prosecutions by ex-officio informations, as well as in those by indictment, he should perhaps give it his feeble support on the third reading. Lord Lilford began by making some remarks respecting the apprehensions which lord Holland seemed to entertain of giving too great an influence to the Crown, and those which the earl of Liverpool held with respect to the absolute predominance of the people. For his own part, he was equally jealous of the absolute authority of both: "Justum et tenacem propositi virum Non civium ardor prava jubentium, Non vultus instantis tyranni, Mente quatit solida." one of his speeches on this momentous occasion, after stating all the evils that arose from the present practice, had expressed his regret that the assizes were not more frequent. There the noble and learned lord argued well; as he always did when he was willing to do so; and he (lord Holland) was of the same opinion on that subject. But it was surely lamentable, that after two years preparation, they should have crammed down their throats a morsel like this, which, with the assistance of so many eminent lawyers, the noble and learned lord could not render palatable. The noble lord then proceeded to quote several parts of the preamble, and contended, that it was shown in the bill that the delays complained of arose from defendants being allowed time to plead after indictment.After what he had shown of the nature of this bill, it was manifest that its title was grossly deceiving, it professed to be a bill to prevent delays in prosecutions for misdemeanors, but it did not say one word of the greatest delays-those which occurred in proceedings by ex-officio informations. By the wise provision of those great men who lived at the time of the Revolution in 1688, and to whose The noble and learned lord, when he first authority their lordships often referred, proposed this bill to the House, had told improper delay could not occur by allow them that it was not suggested by the ing the accused time to plead, because, exigencies of the present time; and he in prosecutions by indictment, the de- was much pleased to hear that declaration. fendants were obliged to enter into recog- There was no doubt that the subjects of nizances, which they must forfeit, if the realm had reason to complain of legisthey did not appear to plead. But in lative enactments, made to meet temporary proceedings by ex-officio informations, exigencies. When he looked over the Stathe attorney-general had the power of tute book, he found the laws enacted for punishing a person accused, though not temporary purposes extremely numerous. convicted of a libel, by keeping a prose- In his view of the case, experience showed cution hanging over his head for life. He not only what was true, but also what was did not say that this had been done by the expedient. It was or it was not true, that present attorney-general, or his predeces- by the present practice a long interval sors; but this he would say, that there elapsed between indictment and trial, were at present forty informations depend- during which many innocent persons were ing, some of which had been hanging compelled to stand in the situation of criover the parties accused for one, two, minals; whilst others, who were not inthree, four, five, and some for ten deed criminals but certainly culprits, stood years. And this must surely be admitted in the situation of innocent persons. It to be a shocking state of the law. He had been said, that the reason of the noble would not at present enter into the views and learned lord for introducing the bill which he entertained respecting the dan- was, to expedite trials for seditious and ger said to exist in the country-a subject blasphemous libels. Now, the only queson which he differed, perhaps, from many tion was, whether this was a sufficient noble lords who had stated their opinions reason for disturbing the law of the counto the House. Whatever might be the try; and as he believed that the delay extent of the danger, he thought it was which the law at present permitted retardowing, in a great measure, to the dis-ed the course of justice, on that view he trust of the people in parliament. If should support the bill. The bill was then read a second time. SEIZURE OF ARMS BILL.] On the motion of lord Sidmouth, the House resolved itself into a Committee on this bill. The Earl of Darnley moved, that the clause authorizing officers to enter houses in the night-time to search for arms be omitted. He would ask the noble lord whether a person opposing an officer in the administration of his duty, would be guilty of murder if he should occasion his death? He conceived that all the purposes of the bill would be equally answered by confining the power of searching to the day-time. The Earl of Blessington wished to put a question to the noble lord, before he proceeded to make any comments on the information which he had received. This bill, he understood, was intended to affect Ireland as well as this country. Now, they had been told, that all was quiet in Ireland, and therefore the extension of the bill to the people of that country could only tend to irritate them. The bill, in his opinion, had been rendered necessary, not by those persons whom he would call subjects, but by the conduct of those who were intrusted with the government of the country. He therefore begged to be informed by the noble lord, whether it was in contemplation to extend the provisions of the bill to Ireland. He might remark before he sat down, that formerly when a similar law was enforced in that country, the arms which had been taken away from the people were never restored? He trusted that would not be the case in the present instance. Lord Sidmouth answered, that the bill applied only to certain counties in England which were expressly named. It certainly gave a power to the magistrates in any part of the united kingdom to extend its provisions, if necessary; but at present it was confined to certain counties in this country, and the noble lord would surely not say, that if it was necessary to apply it to other parts of the kingdom, the executive government should not have the power of so applying it. With regard to the amendment proposed, the noble lord had said, that by searching in the night-time great inconvenience might arise to individuals against whom information had been given of having arms in their possession. There was no doubt of this; but the safety of the state was paramount to any consider ations of individual convenience. Was it to be permitted, that persons who were said to have arms in their possession, were to be allowed time from sun-rise to sun-set to conceal them? But the noble lord had asked, if a person opposed force, and killed the officer, whether he would be liable to an indictment for murder? The only answer he could give to this question was, that a man might be accused of murder, whether it was committed in the day-time or the night-time. This bill, it should be observed, had a provision, which was not in the act of the 52nd of Geo. 3rd, namely, that a search could only take place on information given on oath; and that being the case, he would ask, if they ought to sacrifice the whole bill by removing the provision to which the noble lord objected? The Duke of Sussex perfectly coincided in opinion with the earl of Darnley on this subject. He did conceive that a great deal depended on the manner in which this law was to be put in execution. When they could carry the law into effect, without offending the private feelings of individuals, or making an attack on public feeling, that course should be adopted. The noble lord had said, that if this provision were omitted, it would not, in some cases, be in the power of the officers to act on the information they had received for ten or twelve hours afterwards. But if they had the power of getting that information secretly, they might surely conceal the circumstance from the party informed against for a short time; and thus, by delaying the search till a seasonable hour, they might avoid giving that offence which the present provision must inevitably give. It was surely most offensive for a man to be disturbed in the first hours of his slumber; and, though he was anxious to avoid saying any thing that could inflame the public feeling, he must declare, that were he disturbed in such a manner, he should certainly be ready to inquire if such a proceeding was legal. The Earl of Blessington, in explanation, said, he should not state his authority for believing that it was in contemplation to extend this bill to Ireland, although he had good authority for entertaining such belief. In consequence, however, of the noble lord's answer, he should not insist on offering any remarks on the subject; he thought the alarm in this country was in a great measure unfounded, and he must protest against any intention the noble lord might have of making the people of Ireland suffer for it. The Earl of Rosslyn asked, whether the clause which made the possession of arms of a particular description prima facie evidence that they were intended to be used against the state, was so guarded as not to apply to common arms, such as guns, pistols, &c.; and whether, as no oath was required to justify the seizure of the one, the necessity of an oath might not be evaded with respect to the other. Lord Sidmouth said, that the clause expressly mentioned pike-heads or spears, as the description of weapon that should be considered primâ facie evidence of the evil intention, and seized without information upon oath. The common weapons which might be kept merely for purposes of defence, were regarded in that view, and an oath of the supposed purpose for which they were intended was required, before they could be seized. The Earl of Rosslyn thought it hard, that the man who had in his possession pike-heads or spears without any design against the government, should have no protection against the breaking open of his house in the night. Lord Erskine did not think that the noble lord was in earnest in bringing the bill before the House. The preamble of it proclaimed the existence of a widely spreading and dangerous conspiracy, in the truth of which he could not coincide. Application, according to the bill, was to be made to a magistrate for a warrant, when the applicant might state, that he believed that arms for an improper purpose were in the possession of another, without however stating any facts. The magistrate would not be at liberty to refuse. Thus some poor man, who with his family might have retired to rest after his labour (if indeed any man could venture to go to bed at all after the passing of this act), might become the much-injured victim of malevolence and oppression. The onus probandi was thrown on the poor man, who would be forced to answer a rule to show cause why the door of his dwelling should not be broken open in the middle of the night, and his family almost tortured, in order to gratify the malignity or the cruelty of any other person. But he might apply for the restitution of the weapons which should be seized from him: and he, like the ghost of Hamlet in armour, might ask at the quarter sessions for his property, and there be compelled to pay heavy expenses. The bill was of a nature which no one could assent to who thought of its consequences. All these things tended to increase the distrust and irritation in manufacturing districts; and if people were disposed to emigrate, he saw no choice between London and Constantinople, unless the preference were in favour of the latter. In London we once had the best laws, which were gradually changed for the worst, and in Constantinople the worst laws, in which no alteration could be made but for the better. The Earl of Liverpool said, that the measure to which the attention of their lordships was then called, was not worse than one which had been enacted four years ago. That there were disturbances, could not but be evident to each of their lordships who had read the papers on the table. The noble lord denied the existence of a conspiracy; and yet who could doubt, after what had occurred at Burnley, where all the persons who composed that multitude, as it was admitted, were armed either with pikes, or with other weapons. For what object were the pikes and those other weapons, constructed and collected, if not for a traitorous purpose? There was a distinction, which could not but be evident from the bill, relative to the mode in which its operation was to take effect. Persons having weapons of the first description, were to be considered as if prima facie testimony had been offered against them, and they were to become liable to the penalties of the bill; but when it could be proved that the other weapons were detained for no improper purpose, the possessors of them were not to be liable to any penalties. In the former case, the possession of the weapons specified was to be regarded as having rendered the possessors subject to the consequences of the bill; in the latter, an oath was to be required before even suspicion could lay hold of the weapons, or leave their owners subject to any disagreeable result. Lord Holland inquired if, in the first clause, there were any objection to insert "two magistrates" instead of "a magistrate?" He did not wish to press this amendment, but at all events the word "cannon" had been omitted among the weapons, as it had been stated that a good many had been about lately. |