Circular of lord Sidmouth authorized and required magistrates to arrest persons on oath, and hold them to bail for a libel, before they were indicted. But there was the authority of lord Camden, among others, against that practice, who express ly laid it down, in the case of Wilkes, that no man could be so held to bail for a libel. And he did not confine himself to the cases of peers or members of parliament, but included all individuals. He felt himself warranted, therefore, in maintaining, that it was never in the contemplation either of the statute or common law, to invest a secretary of state with such authority. belong to me to explain to you what that duty is; you are judges to a certain extent, and are bound to exercise a judicial discretion. No man could doubt that his learned friend (the attorney-general) would give his opinion in the most upright and conscientious manner; but it ought to have been stated to him by the noble lord, that his opinion was to be acted upon. If he had been told that his opinion was to serve as a guide to the magistracy, it was most likely that he would have given a different opinion. Sir C. Monck observed, that the secretary of state was right in taking the opinion of the law officers of the Crown, but it by no means followed, that he was to use that opinion to influence the judgment and conduct of justices of the peace. What greater right had the secretary of state to dictate to the justices of the peace, than he had to dictate to the judges of the King'sbench, of the Common Pleas, or of the Exchequer? The jurisdiction of justices of the peace might not be considered so important as that of the judges of the su Mr. Addington explained the special reasons which had induced his noble relative to have recourse to that measure which had been this night called in question. He need not remind the House what the state of the country had been at the time the Circular was issued. It was sufficient to state, that the most mischievous publications were in circulation, and it in consequence became necessary, in the month of February last, great alarm hav-perior courts, but it was unquestionably ing been expressed on this subject by some of the most respectable individuals in the country, for his noble relative to take the opinion of the law officers of the Crown. It was then for him to write specifically to the magistrates who had applied to him for information, inclosing them the opinion of the law officers, or to adopt the course which he had taken. To issue a circular letter explanatory of the law, had appeared the most efficient measure to which he could resort, and the decision came to would, he doubted not, meet with the approbation of the House. Mr. Courtenay thought it of the most serious importance that the House should mark its opinion of this proceeding. The attorney-general, he observed, had not cited any case in which the question was brought before the court; but the law could only be settled by the decision of judges, in cases brought under their consideration. Lord Mansfield, who was by no means disposed to weaken the power and influence of the Crown, had said, that whenever bail is offered the Court never looks at the warrant. He did not charge the noble secretary of state with any disposition to violate the law; but when the difficulty occurred, he met it in a way in which it should not have been met. He should have said to the magistrates, You have a duty to perform, but it does not very important, and, therefore, why should the Crown direct the exercise of their authority any more than any judicial authority whatever? The justices of the peace were as responsible for the discharge of their duties as any other judges of the country. Sir F. Burdett said, that after this question had been so ably supported, both in detail and in general constitutional doctrine, it required some apology from him for offering himself to the notice of the House. He had waited till the last moment, expecting some farther arguments from the legal authorities, since the attorney and solicitor-general like greyhounds generally ran in pairs; but it seemed that the learned solicitor-general had left his colleague to bear the whole brunt of the contest. The only remaining constitutional branch of the subject which he should endeavour to support was thisthat there was no practice of the courts, no usage, no dicta, that could contravene the established law of the land. The law of the land was, that nullus liber homo capiatur vel imprisonetur, unless upon conviction by a jury of his peers. That this was the old common law of the country was allowed on all hands; but it ought to be considered with the greatest strictness in respect to libel, a species of offence unknown to the common law, and which benefit of his legal knowledge; but has he had not ventured to speak, it was a strong presumption, that he could not bring himself to maintain doctrines which his better judgment disapproved. Was it fit that the executive government should instruct persons who ought most jealously to be kept separate from the executive government? It was a very extraordinary proposal, that the House should be called upon to sanction an opinion without having before them the grounds of that opinion. Much had been said about a breach of confidence, but had the House no power on this occasion? It had, indeed, often carried its privileges to a great length against the rights and liberties of the people, but it had seldom exercised them against the Crown, and, least of all, against the lawofficers of the Crown. He had been too long a member of that House to entertain any hope that they would exercise their powers to compel Mr. Attorney to lay the grounds of his opinion before them; but he humbly thought that they ought to see those grounds; and though he would not persuade the House to take such steps as would oblige him to produce them, still he had no doubt that it possessed the power. But if it would be a breach of confidence in Mr. Attorney to disclose the grounds of his opinion, how much greater was the breach of confidence which the secretary of state had committed, by stripping the opinion of those grounds? He really thought that these gentlemen in office did not act fairly towards each other. Upon the whole, it was his opinion, that nothing would tend more effectually to lower the character of that House in the minds of the people than the rejection of the present motion. had been adopted from the civil law, and more recently borrowed from the practice of the infamous court of star-chamber. It was very extraordinary that, up to a late time it never was discovered that any man might be imprisoned for a supposed libel by ex-officio informations. If it had been the law of the land before, why was a bill brought into the House to enable judges to hold to bail upon such ex-officio informations? In the case of libel, how was the party to proceed?-upon a person going to any magistrate and swearing that a man had published a libel;-only, observe, swearing to a point of law that a man had committed that which could only be found by a jury [Hear, hear!.] In felonies, justices of the peace commit on oath ; but then there existed a corpus delicti; an offence has been committed; and then they can hold the man in security for his trial, and the jury have to decide whether or not he has committed the particular fact; but in cases of libel, there was no corpus delicti, and it was impossible to tell what words an attorney-general or a jury would decide to be a libel. In his opinion, there was no subject on which the House were more bound to protect the people against being improperly punished than on charges of libel. When first this bill was passed, it was said that the power would be very seldom exercised; but it had now become a matter of course, that judges, even upon the mere intimation that the attorney-general intended to file an ex-officio information, held the supposed libeller to bail. They had now an instance of a person (Mr. Wooler) having been committed under this authority, and afterwards tried and acquitted. The hasty conduct, or, in other words, the imprudent zeal of the judge on that occasion, deserved the most grave and serious consideration. To-morrow he should have a petition to present to the House, which would bring before them the judge's conduct as well as the singular hardship of the individual, who was now placed in a situation in which the government could not punish him. The office of attorney-general was one which ought to be looked at by the subject with great suspicion; and he thought that the assertions of the hon. and learned gentleman with respect to his opinion might have been spared. The silence of the solicitorgeneral gave the House great reason to be lieve that he did not concur in the opinion of his colleague. The learned gentleman was there ex-officio to give them the The Solicitor-General felt himself called upon to address the House, after what had fallen from the hon. baronet; and he could assure the hon. baronet, that unbiassed, unfettered, and unshackled by any pledge whatever, he had no doubt of the soundness of the opinion given by the law officers of the Crown. He had listened with the utmost attention to all that had been said, but he had heard no argument whatever which, in his opinion, had shown the interference of the noble secretary of state to be unconstitutional. On the contrary, the more he attended to the subject, the more he was convinced, that that Letter was founded on what the constitution gave the secretary a right to do. And he would only here remind gentlemen how often they had seen proclamations issued by the monarch, which declared what was the law; and was any thing more common than for judges at the various assizes to point out to juries what the law was? This Circular did nothing more, than merely remind the magistracy of what was the law of the land. Was it to be said that the secretary of state was to wait in indolence, and that magistrates were to do nothing till a crime had been committed, and that all was to depend on information being filed by the attorney-general? The hon. and learned mover had admitted the secretary of state had the power of imprisoning. This was indeed a great admission from the opposite side of the House, when the jealousy which they professed to have for the secretary of state having power was considered. The opinion of ford Camden and other lawyers of that day, had been in favour of this power being vested in justices of peace, and indeed that opinion was well founded, for those persons were put into office for the purpose of preventing breaches of the peace. In a recent case, where a person was charged with inciting another to steal, lord Kenyon had declared the prosecution was proper, even though no act of theft had been committed. Though libel was not specifically pointed out in the statute book, it was always considered a breach of the peace, and this had been decided in the case of the King v. Somers. If, then, the magistrates can commit for felony, why not for libel? because, by having such power, they did no more than they did in a thousand other cases. A magistrate, in committing for a crime, exercised his discretion, well knowing that a jury had to decide on the case; and why should he not do the same in the instance of libel? He had read the argument of a noble earl in another place on this subject and [Here Mr. Bennet called the hon. and learned gentleman to order.] The Speaker said, it was not parliamentary to allude to what passed in the other House of parliament; it was the practice to allow any printed publication to be referred to the circumstance of that publication having been delivered in another place might, however, lead to a deviation from order in commenting upon it. Mr. Wynn thought there was considerable inconvenience in referring to a speech spoken in the other House of parliament, even though it was printed. There was no knowing whither such a practice might lead. Sir F. Burdett said, the publication might be alluded to as an argument which had been used, though not as a speech spoken. The Solicitor-General proceeded-If in a case of common cheat a magistrate could commit, he saw no reason why such power was refused in cases of libel. For would any man tell him that libel was ever intended by the legislature to be more privileged than any other crime? There might be cases in the law of libel which might give rise to nice questions, but cértainly this might be done in every other case as well as libel. Much had been said of the oppression to which these persons were subjected by being imprisoned, but was not this the case in every instance where a charge was preferred against an individual? It was unfortunate indeed that this should be so, but there was no avoiding it, when the imperfection of human nature was taken into consideration. He was astonished to hear lord Hale's language so much tortured as it had been by the hon. and learned mover. Lord Hale had distinctly laid it down, that justices of the peace might issue their warrants against persons charged with crimes against the peace and hold them to bail. Hawkins also said, that justices had this power in cases of felony and misdemeanors. The very act of the justices of the King's-bench, in holding persons to bail, and in receiving that bail, justifies the opinion of the law officers of the Crown. Having established-first, that libel was an offence cognizable by magistrates; and secondly, that being cognizable by them, they had a right to commit for it in default of bail, he conceived that he had made out his case. As to the right of the secretary of state to call the attention of the magistracy to certain offences, it was only that which had frequently been done by proclamation, and by judges at the opening of an assize. He was astonished to hear his hon. and learned friend introduce so long a history of attornies and solicitors general, as if to assimilate the proceedings of his hon. and learned friend near him and himself, with the proceedings which he condemned. There might be an imputation against the heads of his hon. and learned friend near him and himself, but there could be none against their hearts. They had discharged their duty to the best of their ability; and in so doing, he denied that he had declared any old, or introduced any new law. After the best consideration which he had been able to give the subject, he remained precisely of the same opinion that he had adopted originally with respect to it; and must therefore oppose his hon. and learned friend's motion. Mr. Wynn complimented the last speaker on his able construction of the law, and expressed his conviction that that was the only fair construction which could be put upon it. He was the more convinced of this by the consideration of what had passed in Wilkes's case, and the judgment given by lord Camden. Every offence, and the greatest the law knew, was subject to be decided on, as to commitment, by a single magistrate. A man might write to another abroad that he was about to send him six bales of cloth and four of cotton; this was innocent; but if the bales of cloth meant ships of the line, and the cotton frigates, and the letter was written to give information to an enemy, the of fence was treason, and a magistrate might commit the writer. With respect to the other part of the case, he considered that the secretary of state possessed the right of directing magistrates, as the head and superintendent of the police of the country; but then, he ought to give the directions on his own responsibility, and not on that of the attorney and solicitor-general. He never knew an instance in which the law-officers of the Crown had been so called upon to expound the law, except that of the volunteer bill, and that had not been so successful as to render it desirable as a precedent. Lord Sidmouth's Circular had, besides, been addressed to the lords lieutenants of counties, which was a farther impropriety. The lord lieutenant being a military officer, ought not to have been made the medium of such a communication. Sir S. Romilly, in reply, expressed his surprise, that none of the members of administration, with the exception of his learned friend and the hon. and learned gentleman who spoke last but one, had offered their opinion on this question, Their allowing it to go thus silently to a decision, showed the little value they set on questions of importance to the liberty of the subject. Nothing had been said in answer to the objections which had been urged on constitutional grounds. His hon. and learned friend seemed to think that he was only called on to justify himself against a particular charge, and the same view appeared to have been taken (VOL. XXXVI.) by the solicitor-general. The question, however, had not been brought forward with a view to censure any individual, but to show the impropriety and danger of publishing law on the authority of any attorney or solicitor-general whatever. The attorney and solicitor-general were only the king's advocates, and not the judges of the law; and although the present holders of those offices might be, and were, men of the utmost probity, who should say that in future such attornies-general as Noy might be found to be the tools of ministers? It appeared that the secretary of state had published the opinion of the law-officers without their knowledge; and this conduct appeared to be such a gross breach of confidence, that had it happened to him he should have thought it his duty to tender his resignation. Sir Samuel then entered into the law of the case, insisting that the answer, even upon that point, had been almost as defective as it had been upon the constitutional part of the question. It had been said that the magistrate was only empowered to commit for a time; but was it not necessary that he should first form an opinion upon the paper whether it were or were not a libel; and if he decided in the affirmative, did it not entail upon the unhappy culprit many of the worst consequences of con viction; dragging him away from his family and his business, and burying him in a dungeon? The authority of lord Hale had been relied upon as completely decisive, that the magistrates had the power to commit in cases of libel; but it was singular, that those who quoted him should have omitted a most important passage, in which the same learned judge expressed a doubt as to the opinion he had previously stated on certain text-books to which he had referred. Sir Samuel took occasion to censure that part of the circular which directed prosecutions against the sellers of pamphlets under the hawkers and pedlars act, upon which, it appeared, only one magistrate had ventured to proceed, and he had been compelled to make compensation to the party injured. He denied that the Circular had the least resemblance to a proclamation, or to the customary address of a judge on opening an assize. The proclamation of 1793, for instance, only enforced the existing law. In the case under the consideration of the House, there had been a declaration of law perfectly new. The motion was negatived. Sir S. Ro(4G) 1. "That it is highly prejudicial to the due administration of justice, for a minis. ter of the Crown to interfere with the magistrates of the country, in cases, in which a discretion is supposed to be by law vested in them, by recommending or suggesting to them how that discretion should be exercised. 2 That it tends to the subversion of justice, and is a dangerous extension of the prerogative, for a minister of the Crown to take upon himself to declare in his of ficial character to the magistracy, what he conceives to be the law of the land, and that such an exercise of authority is the more alarming, when the law so declared deeply affects the security of the subject, and the liberty of the press, and is promulgated upon no better authority than the opinions of the law officers of the Crown." The Attorney-General having moved the previous question, the House divided: Ayes, 49; Noes, 157. List of the Minority. Abercrombie, hon. J. Althorp, viscount Atherley, A. Baring, Alex. Bennet, hon. H. G. HOUSE OF COMMONS. Thursday, June 26. REPEAL OF THE SEPTENNIAL ACT.] Mr. Brougham, in postponing his motion on this subject, wished to offer his reasons for so doing. He did not withdraw the motion because the subject was not one of the most pressing emergency, but having been prevented from time to time, by the press of other business from bringing it before the House, he found that if he were now to take the first open day, he should be doing the cause no service, as the attendance at this late period was likely to be so thin. He should, therefore, better discharge his duty to the House and the subject, by giving a general notice of his intention to bring it forward at an earlier period next session. TIONS.] Mr. Tierney observed, that as there might be a long debate on the Habeas Corpus suspension bill, he should rather prefer moving his intended Resolutions on a future day; Tuesday, for instance. They were necessary in order to show the difference of his views from those of the chancellor of the exchequer. He should, therefore, simply move his resolutions with the view of adjourning the debate till Tuesday. He then moved the following Resolutions: MR. TIERNEY'S FINANCE RESOLU The debt of Great Britain and Ireland (exclusive of any deficiency which may arise in the income of and charge upon the consolidated fund) will be in 16,175,080 |